What Happens to Minor Children without an Estate Plan?
If you are a parent, then you know that raising children involves many personal choices. Beyond providing the basic necessities, like food and shelter, you are also teaching your children values that you want to instill in them.
When you plan for the future of your children, do you want to take your values and choices into consideration or would you rather let the judge have that responsibility?
This is a choice you make when you establish your estate plan.
Ideally, your estate plan will not only include decisions on how your children will be raised, it will also include information on how any money that is passed down to your minor children will be handled. And in many cases, parents don’t want their child to have access to that money until they turn 18.
Let’s face it, many of us weren’t an ideal 18-year-old! There are many 18-year-olds who may receive a chunk of money and would not make the best decisions with it…
Here are the issues an estate plan will address.
Who will be the guardian of your child?
Who will be the guardian of the estate?
Some of your money is going to filter down to your minor children, but they’re minor children, therefore they're not allowed to actually have that money themselves. Somebody else has to manage it.
When you don’t have an estate plan in place, the court is going to look at the best interests of the child. Usually, they will assign someone who is a family member as guardian. However, this family member might not be who you would have chosen.
A Story to Consider:
Let’s say you have two sisters, whom you love dearly and they are both fine people. One of them you get along with very well, but she doesn’t have a consistent job and is very spontaneous. She's close with your children and you know that if she needed to step it up, she would and she would love them like they were her own.
Your other sister, whom you love just as much, already has a steady family life and children of her own, but she is extremely strict and your child has not bonded with her as much as your other sister.
Who would you prefer to be the guardian of your child if something were to happen to you?
Maybe you would choose the first sister because your child is already close to her, and that is more important to you than her spontaneous lifestyle.
Or maybe the first sister has values that don’t really align with yours so you would choose the second sister. Maybe you’re a Christian and she’s not, or you’re an atheist and she is not. These values are important to you and will be the determining factor when choosing a sister as guardian.
These things are important to you — but NOT THE COURT!
The court might consider some of these things, but if you do not leave the court with any instructions on you preferences, they are going to consider what is in the best interests of the child. This means that they will probably give more weight to the stability of the home and the financial resources — and the court will care less about the values you want to instill or personality fits.
In general, if you have an estate plan in place the court will honor who you have elected as guardian. If you do not have one, the court will elect one based on who they deem as the best fit for your child.
Did you consider this?
If the court must name a guardian (i.e., you do not have a will that names a guardian), that guardian will potentially be required to provide accountings to the court and could remain under court supervision the entire time they are guardian of your minor child. How would your sister feel about being under constant court supervision?
This is something that can be avoided for the person taking on caring for your child!
Here is how the court looks at guardianship:
First, does the child have another parent? If you are divorced from the parent of your child or you have never married and the other parent is still living, they will receive legal guardianship of the child (unless there is a court order in place that prevents them from taking guardianship).
If the other parent has also passed away, or if there is something that makes them unfit, the court will look to other family members.
If there are no family members available, the court will then look to third parties. Maybe you have a best friend who petitions the court so they can take care of your child.
The court will look at all of these people and try to figure out what is in the best interest of the child. This is where the child will go.
As a last resort, if there is no one present, no one petitions, or no one agrees, then the child will become a ward of the state. Think: foster care system. Obviously this is not what you want for your children.
Takeaway
Remember, the only way for you to have a say in who raises your children in an unforeseen life event is to have an estate plan in place!!
The best course of action is to put into place an estate plan that names a guardian for your children. Your plan should also include information on how to handle any money that is passed to the minor child. This money could be held in a trust or some type of account that will allow the guardian to access it in order to take care of the children.
I hope you found this information helpful! You likely have unique circumstances that might not have been covered here. If you still are wondering about how this topic relates to your family, please don’t hesitate to reach out to us.
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