Who Will Care For My Children When I Die?

At MH, we often meet people who they don’t need an estate plan because they have nothing to pass on after they die.  Typically, these are younger individuals or couples just starting their careers or who are struggling to make ends meet.  People in these situations usually use the term “nothing” to refer to financial assets. Although these folks may have little in financial terms, they often overlook their biggest asset—their children.

Many people believe that a relative or a close friend will be the automatic choice to care for their minor children in the event of an untimely death.  This is not necessarily the case.  The caregiver for minor children upon an untimely death depends greatly on whether the parents have a will.  If you have minor children, or plan on having children, please consider the following information:

If You Die With a Will

A guardian may be nominated in a Will.  The nominee doesn’t automatically become guardian upon death; court approval is required.  However, unless the court deems the nominee significantly unfit, most nominees are approved.  This process gives parents a greater “say” and provides much more certainty as to the person ultimately designated as guardian.

If You Die Without a Will

In general, if a single parent dies without a will, or a married couple dies at the same time without wills, the court will appoint a guardian in a guardianship proceeding.  In such a proceeding, the court appoints an individual or entity of its choosing to provide care to and make personal decisions for the minor children. Before appointment, the court is obligated to vet the guardian to ensure it is fit to serve in the children’s best interests.  The court may consider any relevant characteristics in its determination, such as finances, education, trustworthiness, and relation to your children.  This vetting process may reassure some people, but keep in mind that the court appointed guardian may have very different ideas about parenting than you do.  Moreover, a court’s opinion on what is in the “best interests” of your children may also vary significantly from yours.

The foregoing provides basic insight on what to consider when minor children are a factor in your estate planning strategy. If you have questions about how your children will be affected by your estate planning decisions, call MH for a free consultation.

Contributed by MH Phoenix Estate Planning Attorney, Darren L. Richardson.

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We live in a litigious society, where over 1 million lawsuits are filed every year in America alone.  Financial predators are looking for ways to take funds from others and often use litigation as their means to do so.  At Morris Hall we provide your assets and your loved ones with important protections that can prevent financial predators from taking advantage of you.  We do this through proper and current estate planning techniques.  With an MH living trust, we can also protect your property, assets and loved ones from probate, estate taxes, gift taxes, creditors, Medicaid spend-down, conservatorship or guardianship proceedings, ex-spouses and more.  A living trust also keeps your asset and beneficiary information private and secure to avoid giving financial predators information to use against you and your family.  Without a living trust, this information will be made public.  For those living in Arizona, we serve the areas of Phoenix, Mesa, Gilbert, Fountain Hills, Scottsdale, Cave Creek, Prescott, Flagstaff, Sedona, Tucson, Sonoita, Arrowhead, Avondale, Goodyear and Tempe.  In we serve the areas of , , Rio Rancho, White Rock, Alamogordo, Truth or Consequences and more.  Contact us today at 888.222.1328 to schedule an appointment with an attorney in your area!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.