There is never a good time for tragedy to strike. It lies in wait to indiscriminately cause pain to whomever is unlucky enough to cross its path. Nobody can do anything to change this, but having the foresight to plan for any tragedy can mitigate some of its consequences. This is especially true for estate planning for parents of minor children.
When both parents pass away without having a Last Will and Testament they will be considered to have passed intestate by the Court . This means the Court and state law will determine many of the decisions that must be made to settle the estates including who is to be guardian of the person and property of the minor children. The death of both parents is already one of the most traumatic events a child can undergo without the added experience of having to go through the Court system to choose who will be guardian over the child. It is likely that immediately after both parents pass away, the children will be taken into the custody of Child Protective Services (CPS) for at least 24 to 48 hours while they attempt to find a temporary living arrangement with one of the children’s family members. The decision to release them, however, is up to the discretion of CPS until the Judge makes a final decision as to who is granted guardianship over the children. It is likely that they will first examine any surviving grandparents to care for them, before moving to aunts and uncles. After these efforts are exhausted, the Court will search for any extended family they can find. Close family friends can also petition for guardianship, but they will have to convince the Court that they should be granted custody over family. If it is ruled that there are no interested parties that are capable of taking care of the decedents’ children, a state-approved independent guardian will be appointed, which typically means the children will enter foster care.
The best outcome of the above outlined process is that the surviving family members agree who should be responsible for the children, they petition the Court to achieve this outcome, and the Court grants it. Unfortunately, there are various ways these types of cases become hotly contested. This is especially true if the paternal and maternal families do not get along with each other or if there is an estranged family member who would like to gain custody. In these types of situations, where multiple people are vying for custody, the decision is left up to the Court to decide what living situation is best for the children. So, the question for parents becomes, are you willing to leave your children’s future to a Judge that is appointed to oversee your estate? By drafting a Last Will and Testament you are able to predetermine who will be in charge of the person and property of your minor children.
The thought may cross the minds of many that as long as you make your wishes known to your family, in regard to your untimely passing, they will follow your wishes. However, when money is involved, even the most trustworthy people can succumb to greed. When both parents die with no Last Will and Testament their entire estate, including any life insurance policies with no beneficiaries, is left to their children. Consequently, a Conservator to must be appointed to manage the finances if the children are under 18. Remember, the Court must make a decision with a lot less knowledge and experience regarding qualifying individuals than the parents would. Discounting estranged and/or disgruntled family members wishing to create a debacle, money could motivate some individuals whom the parents may have trusted to carry out their wishes to act in a way that is not in the best interest of the children. While it is not always the case that the same individual who is guardian is also the conservator, it is a common occurrence. This makes sense because the funds in the estate are supposed to be used to care for the children until they turn 18 years old. Upon this date they can terminate the conservatorship and receive the remainder of the money. While the Court does have some oversight over the Conservator, it does not guarantee that these funds will be appropriately used. By not having a Last Will and Testament and appointing a Conservator, the children’s financial future will also be put at risk.
It is estimated by Northwest Mutual that only around 36% of parents of children under the age of 18 have a Last Will and Testament. If it can be assumed that the vast majority of parents care deeply for their children and that most parents have thought about what would happen to their children when they die, then what would account for the above-mentioned figure. The Ostrich Effect, a reference to the animal’s inclination to bury their head in the sand, can be defined as the tendency to ignore a dangerous or risky situation. Instead of handling the situation while it still can be handled, many people like to procrastinate activities and decisions that make them uncomfortable. Do not make this mistake in regard to your children’s future. Do not let one tragic event turn into a series of tragic events due to your failure to plan ahead. If you wish to have a Will written on your behalf, it is best to consult a lawyer to avoid potential challenges and to ensure your wishes are accurately reflected. To see how you can avoid having your Will contested, you may wish to read this article.