What will happen to your kids if you die? Parents must make difficult decisions all the time. Their children’s health, education, and overall well-being are in their hands, after all. An important part of raising children is the question “What will happen to the children if I die?” No one likes to think about matters like this for too long, but it is a decision that needs attention before it becomes urgent.
Single parents, in particular, need to consider who you want to care for your kids if you die or are no longer able to care for them because of an illness or injury. You can designate a legal guardian for your children in your will, or in another document that is part of your estate plan.
It is never too early to start thinking about this. If you have questions or concerns, an estate planning attorney can offer you guidance.
Parents Can Name a Legal Guardian for Their Children
You can designate a person in your will to serve as the legal guardian for your children. A legal guardian named in a will is known as a “testamentary guardian” in some states.
If both parents are alive, you should make this decision together if possible. The guardian you choose would take over as the children’s caregiver if both of you die or are incapacitated.
Some states identify two different kinds of guardians for children. One type of guardian, sometimes known as a “guardian of the person,” has responsibility for the children’s physical well-being. They typically determine where the children live, make decisions about medical care, make sure the children are eating healthy food, and so on. To put that in more familiar terms, this type of guardian tucks the children into bed at night.
The other type of guardian, sometimes known as the “guardian of the estate,” is responsible for managing any property owned by a child and handling other financial affairs. This can be important if you leave property to your children in your will. Someone will need to manage it for them until they grow up.
One person can serve in both guardian roles, or you can designate different people to handle each role. Either might be preferable in different circumstances.
Appointing a Legal Guardian Does Not Terminate Another Parent’s Rights
A designation of guardian has no legal effect on another parent’s rights. Only a court has the authority to terminate parental rights, and then only for specific reasons like abuse or neglect.
You can designate a legal guardian for your children when the children’s other parent is still alive, but that parent would still have parental rights if something happens to you. The children’s other parent would have the right to exercise custody, and the guardian might have no legal recourse against them. This would be the case even if the other parent has had little to no involvement with the children up to that point.
It is possible for your designated guardian to get custody of your children after your death instead of the other parent. If you have evidence that the other parent is abusive or otherwise poses a danger to the children, you can include this information in the paperwork designating a legal guardian. The person you designate would have to fight for custody in court, so this is something you should only do if you believe it is absolutely necessary.
Other family members, such as grandparents or aunts and uncles, might claim that they should have custody of the children instead of the other parent or your designated guardian. They will have to file a claim in court and show that they have a strong relationship with the children. The guardian will have to present their case for why they should have custody of the children. Your designation of this person as legal guardian will carry some weight with the court, but it is not the only factor in the court’s decision.
Factors to Consider When Naming a Legal Guardian
Serving as a legal guardian is an enormous responsibility. You should think carefully about who you want to name. You should also revisit this decision periodically as the circumstances of everyone’s lives change. However old your children are now, they will get older. The person or people you designate as their guardian will get older, too.
Instead of looking ahead to your children’s entire childhood, look no further than about five years out. A few years from now, think about whether the person or people you designated are still a good choice for the job. You can change your mind about who you picked at any time, as long as you are still alive and competent to sign a legal document.
Factors for you to consider when making your decision include:
- Their relationship with your children. Do your children know them? Do they like them?
- Their physical ability to do the job. Are they going to be able to keep up with your children at their current age? What about as the children grow up?
- Their emotional capacity for the job. Can they be effective stand-ins for the children’s parents? Not everybody is cut out for that, and you need to assess this quality with care.
- Their willingness to do the job. Do not designate someone as the legal guardian of your children without speaking to them first and making certain that they will accept the responsibility. The absolute last thing your children would need, after losing their parents, is rejection by the guardian you chose.
- Their compatibility with your values, religious or otherwise. Will they raise your children with respect for the way you have raised them? Will they follow your guidance regarding spiritual or religious practices?
- Their existing family responsibilities. Do they have children of their own? Can they take on more children after a tragic loss? Will your children get along with all of the members of their family?
- Their financial aptitude. Can they take on the financial responsibility that comes with children? Can they responsibly and ethically manage property that you left to your children?
- Their ability to work together or with others. If you want to choose a married couple to be your children’s legal guardians, do you think they can work together to take care of the children? Whether you are choosing a couple or an individual, do they get along with other members of your family who will continue to have a relationship with the children? Will they let the children’s grandparents and others see them?
Legal Guardians Might Be Subject to Court Approval
Most states leave the ultimate decision about guardianship of children to the courts. Your designation of a legal guardian to care for your kids if you die will carry a great deal of weight. This is especially true if no one else claims custody or challenges the designation of your chosen guardian. The court must decide based on the best interest of the children.
Older Children Might Have a Say in Where They Live
Some states allow older children to state a preference for where they will live. The exact age varies among states, with twelve being at the low end.
Courts do not have to accept a child’s preference, but it is a factor they must consider. Suppose a child states that they would rather live with their grandmother than the legal guardian designated by their late parents. The court would inquire as to why the child made that choice. If the court determines that the child prefers their grandmother because she never sets a bedtime and lets the child eat all the junk food they want, while the guardian would set reasonable boundaries, the court would probably not approve the child’s request.
Learn More About Appointing a Guardian to Care for Your Kids if You Die
No one likes asking questions like “What happens to my children if I die or become too sick to care for them?” It is a question every parent must ask of themselves, though. Parents have the power to answer the question by arranging for the care of their children after their death. If you have not started thinking about these questions already, you should start now. An estate planning lawyer can answer your questions and address your concerns.
Contact us today to schedule a consultation.
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