Think of the Children – What Happens to Them if You Die
It’s something we all know – that our children are the most important things in our lives. And, while we’ll certainly do our best to take care of them for as long as we can, we should all take the time to think about who might take care of them if we can’t. Life is unpredictable, and there is a plethora of ways one could be incapacitated, from losing motor or cognitive function to a disease to getting locked up or deported. None of us like to think about the most drastic, final scenario – what will happen to my children if I die?
Without a Will
Barring a freak accident where both you and your spouse die, guardianship over your child is immediately transferred to your living spouse. Even if you and your spouse are separated and your spouse is the non-custodial parent, he or she is immediately granted full custody upon your passing. If you and the child’s other parent were never married, then the other biological parent can petition the court for custody and will invariably receive it, given that he or she is fit to assume the role.
If both you and your spouse pass, and neither of you has prepared a will, the court will appoint a guardian for your child that is in his best interests, often placing him with a family member he knows well and with whom he is most comfortable. Most courts, as mentioned before, even allow family members to directly petition the court for guardianship.
What are the Benefits of Preparing a Will?
While there is a good chance that your child will go to a decent guardian when you leave no will behind, it is still highly recommended that you prepare a will. A properly executed will, drafted with the help of a well-trained lawyer, will ensure that you have a say in who gets to take care of your child and his finances even after you’re gone. In your will, you can nominate an individual to become your child’s guardian and a separate person to become your child’s conservator, or asset manager – a person who will oversee the child’s finances and any assets left to them until they come of age. A will also gives you the option to nominate either the same person or different people for both roles, and the option to name different people for these roles for each individual child. Your nominations for guardian and conservator still must be approved by the court, but they are almost always honored, save for the instances where the individuals named are grossly unfit.
The Importance of a Unified Vision
In most cases, you and your spouse would draft a mutual will where you name these individuals. If you decide to draft individual wills, it is imperative that you both name the same people as your children’s respective guardians and/or conservators, so as to prevent any confusion or disputes in probate court.