Who Gets The Kids When I Die?

by

Steven J. Scheinin

The most important reason to prepare a Last Will & Testament, particularly for young couples, is the peace of mind of knowing that your children will be brought up by people you designate. In the normal situation the guardianship of your children will not be determined until the death of the second parent. If your spouse is alive at the time of your death, then obviously, your spouse will raise your children. Should you and your spouse die together, or should your spouse predecease you, and then you die, a guardian must be appointed for your children. There are two types of guardianship, one for the person who will raise your children, and the second for a Trustee of the money you leave your children. Although they might be the same person, it is not required. In estates with large amounts of money, a bank might be a Trustee or Co-Trustee to insure that the money is spent only for the care of your children.

In the situation where both parents are deceased, the ultimate decision of guardianship is made by the Circuit Court of the County in which the children reside at the time of your death. Children aren't property. You can't pass on their custody to anyone. You can only recommend that the Court appoint the guardian you prefer. You have input into the Court's decision through your Last Will and Testament. The court will normally give first consideration to those people you name in your Last Will and Testament as guardian of your children.
 

In cases of divorced parents, should the custodial parent die, then the surviving natural parent, with or without your consent, will normally be granted guardianship of the children of the parties. It is a rare situation where the Court will appoint a guardian other than a natural parent who is still alive. The same is true in cases of divorced parents where the custodial parent has remarried and then subsequently dies. Unless the step-parent has adopted the child, the Court will normally give first consideration to the natural parent. In this situation, appointing a separate guardian of the money of the child is advisable. It is essential that a Lawyer be consulted when preparing a Last will and Testament, particularly if you desire someone other than your ex-spouse to be guardian.

In considering a guardian for your children there are may factors to consider: age and health of the potential guardian, resources, character and values, personalities, geography. You should always check with the potential guardian to insure that they want this tremendous responsibility. It is imperative that parents living together agree on the choice of guardian. If one parent names someone from his family and the other someone from hers, a nasty fight is almost inevitable. Although the children's grandparents may be willing to accept responsibility of raising the children, they might lack the health or energy for the job later on. Most parents look toward their brothers and sisters as potential guardians. In naming a guardian you should consider naming only one guardian, that is, your sister rather than your sister and her husband. The reason is that joint guardianship can create problems if the couple should separate. If things work out they can always adopt the child.

Take time to give thought to a guardian for your children. List the pros and cons of each candidate. After making a decision, consult your attorney, hopefully me, for the preparation of the appropriate documents. Enjoy the satisfaction of knowing your children will always have a home.

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