This post was written for Legalzoom by Roberta Codemo and can be viewed HERE
Who gets custody of a minor child when the natural parents die? This is a question parents need to ask themselves. Normally, the surviving spouse gets custody. However, should both parents die, the answer isn’t so simple, which is why it’s important to have an estate plan in place that names a legal guardian to care for your minor child should the worst happen. Failure to do so can have devastating consequences, with the child ending up as a ward of the state.
Naming a Legal Guardian
A legal guardian, or conservator, is an adult who has the legal authority to care for a child should the natural parents die before the child reaches adulthood. The person who has custody is called the guardian of the child, while the person who manages the child’s assets is called the guardian of the estate. This can be the same person or separate persons. Naming a legal guardian is probably one of the hardest decisions parents have to make, but it’s an important one. Unless you nominate a legal guardian in your will, a third party with “legitimate interests” could step forward and petition the court for custody.
The Importance of a Will
Parents need to have a will to ensure their child is cared for according to their wishes. While it’s hard to imagine someone else raising your child, nominating a legal guardian not only gives you peace of mind knowing your child will be cared for but lets you decide who that person will be, such as a family member or close friend. If each parent has a separate will, rather than the two having a joint will, they should each nominate the same person to avoid confusion.
Guardianship is an important responsibility. Ask yourself if the person you want to nominate is emotionally, financially, and physically able to care for your child. Select two or three potential candidates and arrange a meeting with them to discuss your decision. It’s wise to pick an alternate guardian just in case something should happen to your first choice. Review your decision every two to three years in case circumstances change.
As a rule, the court will honor your wishes and appoint the person you nominate. While it is extremely rare, the judge can choose someone else if the fitness of the person you nominated is called into question.
Intestate Decisions
If the natural parents die intestate—without a will—the court appoints a guardian. As a rule, the court nominates a family member, such as a grandparent, even if this is someone you don’t want raising your child. Without knowing what your wishes are, the court acts in the best interests of the child. Alternatively, a third party, such as a family friend, can petition the court to be appointed guardian. If the child has no surviving family members, they could become a ward of the state and enter the foster care system.
In most states, a child age 14 or older has a say in who is appointed his guardian. The court gives priority to the child’s preference, as long as the child’s choice is deemed suitable.
Single Living Parent
If one of the natural parents is still alive, the surviving spouse will be granted custody. However, in some cases, this can be detrimental for the child, especially if the surviving spouse has a history of drug or alcohol abuse, physical or mental abuse, or a criminal record. If this is the case, document the situation and give a copy to your executor. You may also want to write a letter to the court stating your reasons for not wanting the surviving spouse to get custody and attach a copy to your will. Make it clear that your concern is for the protection and well-being of your child—not because you don’t like the other parent.
If the other parent has abandoned responsibility for the child and doesn’t want custody, get a signed statement from her to this effect. Keep a copy with your will.
Managing Assets
If both parents die while the child is still young, the parents will want their assets to be used to care for their child. The parents can name a property guardian in their will to manage their assets on the child’s behalf. This can be the same person that you nominate as guardian. The property guardian is appointed by the court and the court monitors her activities. Guardianship ends when the child turns 18.
If the parents don’t have a will, the child automatically inherits his share of the parent’s estate. The assets are then held in an estate in the minor’s name and overseen by someone appointed by the court. The child would have access to the account. Once the child turns 18, the assets go directly to him.
Alternatively, the parents can set up a minor trust and appoint a trustee to manage it. The guardian of the estate then asks the trustee for funds from the estate to care for the child. The trust doesn’t automatically terminate when the child turns 18. Instead, the parents can determine when the child inherits.
Estate planning is often the last thing on the mind of parents with young children. Accidents happen and you could die, leaving behind your minor child, so it’s imperative to plan for the worst-case scenario.
This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.
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