An Attorney By Your Side, And On Your Side

« Back to Home

Who Will Care For Your Children?

Posted on

Estate planning is not just for those in their older years or the wealthy. If you have a child under the age of 18, it's vital that you do some planning that covers them in the event of your death. What actions you take depends on your circumstances so read on and find out what estate moves you need to make now.

Guardianship: What to Know

You might want to think about who will get legal custody of your child after your death. You can appoint a guardian to take on that task. Keep in mind that appointed godparents are not legal guardians unless you have completed and filed guardianship paperwork. Taking this extra step means you can rest assured that a stranger (the family court or probate judge) is not in charge of who will care for your child after your death.

Biological Concerns

In most cases, the other biological parent automatically gets sole custody of a child after the death of a parent. This is the case even if the other parent had no custody privileges before your death. If you are separated or divorced, be sure you are okay with the other parent retaining custody of the child. This is not considered a guardianship issue – the biological parent is always the default custodian after a death. If you don't want your ex to retain custody, you must act now to prevent it. Take these actions:

  1. Appoint a guardian to care for your child after your death.
  2. Explain your reasons for bypassing the biological parent in the will and guardianship documents.
  3. Back up your reasons with proof. For example, if the other parent was found to be unfit at the time of the divorce, indicate that and provide orders, police reports, child study evaluation results, etc.

Be Open and Forthcoming

It's best if you discuss your plans to appoint a guardian ahead of time with the proposed guardian. Don't just assume they want to take on this task. It's preferable to have more than one person in mind when you make your plans. You may also want to appoint a back-up guardian in case the first guardian becomes ill or passes away before your child reaches the age of 18. If you want to leave money to the guardian to go toward your child's care, consider using a trust. Older children may want to have a say in the process too. Speak to an estate or probate lawyer about creating a trust that can address how you want your child's needs taken care of with the money.

To find out more about appointing a guardian for your child, speak to an attorney.