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Estate Planning & Legal Guardianship: What Happens To The Kids When I’m Gone?

Most people create an estate plan to handle the various financial matters that will likely arise after their passing, but there are other factors that are just as important. One that many fail to consider is establishing a legal guardian for their children. While not necessary if they either have no children or all of them are adults, people with minor children absolutely cannot afford to ignore this part of the estate planning process.

Obviously, when a parent dies, the surviving spouse usually gets custody of their children. However, should both parents die or otherwise be unavailable, things become far more complicated. While you might think that it’s obvious who you would want to care for your child when you’re gone, if you don’t put your wishes into writing, it can easily lead to confusion and conflict. As with other aspects of the estate planning process, it will save your loved ones a lot of time and money if you just tackle the problem beforehand, rather than waiting for it to become an issue in the first place.

What Happens When a Minor Child’s Parents Die?

After you have passed on, assuming your spouse isn’t still alive and eligible, the court will check to see if you have named a guardian for your children. If you haven’t (or if the person you have appointed is deemed unfit), then your children will be placed into police custody until a Judge decides who should fill the role. In a situation like this, your family members can petition the court for guardianship. This can quickly become a problem, especially if more than one family member believes themselves to be the best choice.

After hearing the cases of any parties, the judge will determine who their new guardian will be based on both their testimonies and the desires of the children. State judges will do their best to ensure a child’s guardianship is in his or her best interest, but the fact is that courts don’t know your child or your family dynamics. Even a judge who is experienced in these types of cases will have a hard time knowing “what is best” for a child. However, without a proper will, you have no guarantee that your children will wind up in the household that you would have chosen.

Reasons You Should Assign Parental Guardianship In Your Estate Plan

  • It avoids creating familial conflicts: If more than one family member thinks they are best suited to caring for your child, it could strain family relationships and cause needless conflict.
  • It reduces the amount of time your child spends away from family: If there is a dispute in terms of who will be your child’s guardian, they will have to stay in police custody until the matter is settled. This can be a stressful and scary experience. 
  • It minimizes court expenses: One of the main purposes of an estate plan is limiting how much money and time is spent on court proceedings. Debates over guardianship can be a massive waste of money for family members.
  • It ensures children’s finances are properly managed: Even if you have a savings account or life insurance policy left to your children, if your family doesn’t agree on who should manage the money, it could quickly end up being wasted.
  • It can give you peace of mind regarding your child’s future: As a parent, you don’t want to leave to chance who will raise your child in your absence, especially after an event as devastating as the death of a parent.

As you can see, assigning legal guardianship is a vital part of the estate planning process and not something that should be ignored. Even if you’re in good health or you have a spouse, it is best to plan ahead for the worst-case scenario to ensure that you and your children are covered. However, legal guardianship is a very personal decision, so be sure to talk to your desired guardian before the legal paperwork makes the arrangement official, as they might not be comfortable accepting the responsibility or be unable to care for your children due to unknown reasons. Assigning someone to serve as a legal guardian can be a life-changing responsibility, so treat the process with the proper respect and care.

If you have questions about your unique situation or are ready to talk to someone to start making your plan, schedule a free appointment!

About the author

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Founder/Attorney, CCSK Law
I create customized solutions for families to address their planning needs.
I provide plans clients understand. Also, they make sure they know when to use them, and do so affordably. I love the opportunity to break through the legal jargon to clarify issues. We find success when we work through a person’s situation and put the law to work for them.

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