Planning For Families With Minor Children

When Parents Leave a Will

Protect your minor children by having a properly drafted Last Will and Testament. Parents have the option of naming a guardian for their child in their respective wills. Ideally, parents would nominate the same guardian in their separate wills. A court must still approve the parents’ choice. However, probate courts almost invariably honor the parents’ wishes in appointing a guardian, unless the person they've selected is grossly unfit.

Who Should You Choose as Guardian of Your Minor Children?

Your first instinct would be to look at family and close friends, but sometimes that does not yield very many promising prospects. The choice may not be easy, but it is imperative that you make it now before it’s too late. If you don’t name a guardian in a valid Will, you will have no say in who the judge appoints to take care of and raise your children.

When Parents Don’t Leave a Will

When parents don’t leave a will regarding the care of their minor children, the court will decide on a guardian based on the best interest of the child. The "best interests" criteria is similar to what a court might use when selecting a custodial parent in a custody fight. Ideally, judges want to move a child into the care of a guardian the child knows very well. This minimizes the disruption in his or her life at a traumatic time. Family members are usually preferred, and they have the right to petition the court for the appointment.

Management of Inheritances

When a child inherits assets from his or her deceased parents, the funds are devoted to his or her care. Some parents name separate individuals to care for their child and to oversee his or her financial needs - this is called a custodian. Parents have the right to name the same person to both roles, but a court must approve the appointment of the custodian just as it must approve the guardian. A custodian almost always has to report to the court on an annual basis, giving a detailed accounting of the child’s assets.

Death of One Parent

When parents don’t die together in a common accident or disaster, the surviving parent always retains custody of the child; this is not a guardianship situation. Another individual would be appointed as guardian only if the second parent dies. If the second parent leaves a will naming a guardian and custodian, those wishes usually guide the court’s decision. If the second parent to die does not have a will naming a guardian and custodian, the court might look to the guardian and custodian named in the first parent’s will.

Foster Parents - A Potential Disaster in the Making

If you do not name a guardian in your will, Child Protective Services will pick up your minor children and place them with Foster Parents even if a loving family member comes forward to take care of the children. You have no guarantee whether your children will remain together or be split up. A judge will have the children stay with the Foster Parents until a family member or someone who knows and loves your children files a petition with the court to be appointed as the guardian of your children. This is timely and this is expensive. This may be avoided by naming a guardian in your will.

Act today, protect your children today!

If you have minor children, your will can never be created too soon, which is why it's important to discuss your situation with a lawyer. If you would like more information on how I might be able to help, contact D'Onofrio Law Office, P.C. today. I always offer my clients a complimentary initial consultation.

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