When you have minor children, it is your inherent responsibility to provide for their care and ensure their well-being. While these responsibilities might seem obvious, they do not only apply to parenthood, but also in the event of untimely death. Death is a difficult and morbid topic of discussion, however, it is vital for parents to prepare for its eventuality. If you have a minor child, and especially one with a physical or mental disability, providing for their care in the event of your death is made easier if you have a plan. If both parents of a minor child die, then the process of determining where and with whom they will live can become a messy and drawn out process if parents do not have a plan in place for guardianship. All eventualities can be accounted for with the help of an experienced estate planning attorney who will help you to determine the most prudent guardian for your minor child and ensure that your child’s finances will be in order in the event of your or your spouse’s death.
What Happens When Biological Parents Die?
There are instances when both parents of minor children die, whether due to medical reasons or accidents. In the event one biological parent dies before another, custody of minor children reverts to the living parent. In the event both parents die, the situation can become more muddled. If parents do not leave a will, then the court may appoint a guardian to look out for the child and a conservator to look out for the child’s finances, although these roles might be filled by the same person. In these cases, the closest relatives receive preference, such as aunts, uncles, or grandparents and, in the event there is no close family, close family friends. In a worst case scenario, children might be put into foster care if no suitable guardian can be found.
To avoid any confusion, parents of minor children should have a will or at least a guardianship document denoting who they would like to become the legal guardian of their child. If parents write wills, it is recommended that they are written jointly and appoint a mutually agreed guardian to avoid confusion or possible court proceedings. If parents write separate wills, it is again recommended that they name the same mutually agreed guardian to avoid confusion. In the event a guardian cannot be agreed upon or is not appointed before the death of both parents, then the decision as to who will be appointed in this role will be left to the court following a hearing. Relatives can petition for guardianship, however, any petitioner must be approved by the court, which might include a background check. If multiple relatives or family friends petition for guardianship, the situation becomes messy as the court sorts through evidence and determines the most prudent guardians and conservators. It also must be acknowledged that older children, 14 and up, will be given a say in where and with whom they will end up.
Guardianship and Conservatorship
When preparing a will that appoints care for your child or children, it is important to understand guardianship and conservatorship because they are not interchangeable terms. Guardianship establishes who will be responsible for minor children in the event of your death. This entails schooling, housing, feeding, and providing for the medical needs of minor children. Conservatorship establishes who will be responsible for the finances of children in the event of your death. If both parents die, children are typically the beneficiaries of their estates. Although one person can serve as a guardian and conservator, it is important to find candidates certain for each role and, potentially, elect different people for them. If you elect your sibling as the guardian for your child, evaluate whether they have the financial aptitude to handle their finances as well. If you believe another sibling or grandparent has better financial skills, appoint them to separate roles. In the case of a conservatorship, it might even be prudent to appoint an impartial financial professional as conservator.
If parents die without a will or trust, their assets go through the probate process in a surrogate’s court and then are dispersed to the beneficiaries according to state inheritance law, which in New York will see disbursement to any children first and foremost. If parents die with a will, it has to go through the probate process before any disbursements are made. If parents die with a will, then its terms are fulfilled as per the agreement. If parents are concerned about minor children handling finances on their own or receiving a lump sum of money, they can appoint a conservator or set up a trust that disburses inheritances gradually. In this case, disbursements can continue until an agreed upon age when the remainder is given as a lump sum. It is important to note that, in most cases, money that a minor child inherits will likely be used for their upbringing, so it is important to create a prudent financial plan to ensure their needs will be provided for.
How To Prevent Confusion Or Further Grief
In the case of minor children, it is better to be proactive and plan well in advance. Don’t wait for the death of a spouse or a terminal diagnosis to begin making plans for your children. Ensure that you deliberate with your spouse, family, and an estate planning lawyer when making decisions about guardians and conservators. Ensure that when you make a selection, you inform your chosen candidate and have their consent. If the chosen person is a family member, have a frank discussion with them and lay out why you think they are the best candidate. If you have later reservations about your appointees, no matter why, change your plan. Revisit wills, trusts, or guardianship agreements regularly and make any changes you deem necessary promptly. If you have any specific wishes about how to raise your child or any specific provisions you wish to see provided for, ensure that you include them in your legal documents.
The topic of untimely death should not be avoided. If you have minor children, it is your responsibility to ensure that they are provided for in all eventualities. An effective estate plan should be created, or at the least, a guardianship agreement should be made. As a parent, it is crucial that you guarantee your child’s future finances are handled properly. To help with your estate planning and guardianship, call the Law Office of Inna Fershteyn at (718) 333-2394.