We are all going to die one day (hopefully a long time from whenever you are reading this), but yes our inevitable demise is depressing and a bit scary. Luckily for the majority of people we will see our children grow up and failing to name a guardian will make no difference. But is it worth the risk to have a judge, who does not know you or how you want your children to be raised, decide who will raise your children. This risk can be avoided.
But the belief that an estate plan is not needed, and it is too expensive unless you are wealthy is a flagrant mistruth. This belief started due to the perceived expense of an estate plan because the individual does not receive a tangible benefit it is the estate and heirs who receive the benefit. A simple estate plan is worth the present expense to stop potential conflict and strife between your family due to your passing.
My goal is not to make you feel like a horrible parent if you have not created an estate plan it is an easy thing to overlook in your busy life. I want to stress the importance and the benefits provided to create an estate plan. It does not need to be complex a simple well thought out plan will provide a tremendous benefit to your loved ones.
Disposing of your real and personal property is a vital part of your estate plan, however, this post is not about who gets your stuff. It is more important than mere possessions; it is about who will raise and how your children are raised.
Let’s assume worst case scenario, you just passed away. Did you feel it, I failed to think this thru, how can you read the rest of this post if you just passed away.
What now? Did you have a Will, a Trust, or any other Estate Plan?
What happens if you did not name a Guardian of your minor children in your Will, or you failed to make a Will? If the other parent is living, of course, custody remains with their other parent, with a limited exception. But what if the other parent is deceased, incapacitated, or for some other reason is unable to be a Guardian, what happens then? The Court will need to appoint the individual that will be your children’s Guardian.
One or more of your loved ones may submit a petition to be appointed Guardian of your children. Now a conflict between your family that will have to be settled in court, and the action will drag your children into this conflict. It is bad enough that they have lost a parent, but now they are in the middle of this conflict being pulled in every direction by their remaining family.
So the judge will gather as much information as possible about the children, their family circumstances, and the deceased parents' wishes and try to make the best decision. The court may appoint a Guardian ad litem (an attorney who represents the children’s best interest) for the children.
The most important factor in appointing a guardian is the best interests of the children. The court will still consider the priority order when appointing a guardian. The order from highest to lowest priority is:
(1) The parent or parents of the minor;
(2) The person or persons designated by the parent or parents in a will or other written document;
(3) Adult siblings of the minor;
(4) Closest relative or relatives of the minor; and
(5) Other person or persons.
Will a step-parent (your widower or the other parent’s widower), grandparent, aunt or uncle, close friend, or the state be appointed, I do not know. What I do know is that the judge must always act in the best interests of the children. The determination of the best interest of the child depends on what information before the judge, but an appointment is only as good as the information used to make the decision.
The court may appoint the exact individual as Guardian that you would, but it might not. I cannot speak for you, but it is not worth the risk to me; I want to determine who will take care of my children’s if something happens to my wife and myself. In full disclosure, any reference to my children, is referring to my future children.
If you do not have a Will, I urge you to seek counsel to help you create an estate plan that fits your needs.
Benjamin F. King
My goal is to bring issues that are often over looked. But, this blog is not legal advice it is only for general information. Each situation is fact specific.