It is hard to imagine a world without ourselves in it. It is even harder to imagine your children having to live without you, especially if they are still small. However, the unthinkable does happen sometimes. It’s worth planning for, just in case. Learn what can happen when parents die without a will.

What is “Dying Intestate?”

If you don’t have a will that names a guardian for your children, your estate will be considered “intestate,” and the court will make all the decisions about what happens next. Dying without a will leaves your children at the mercy of the court that hears your intestate case. 

 If you haven’t made a plan, your children will face the grief of losing you and not having a loving guardian. Death is not always convenient or timely. It is easy to think you have plenty of time to plan and think about these types of issues. However, the reality is that when parents die without a will, the children suffer.

Dying Without a Will Lets the Court Decide

If you don’t make a plan, the state will. Right now, you can make the choice and prepare a beloved friend or family member to step in should you die. If you don’t make a plan, a court will decide where your children are placed. Your friends and family may not realize that you would have asked them if you had planned sooner.

What if the court chooses a guardian like this for your children:

• An abusive parent you’ve had no contact with for going on 12 years
• An alcoholic brother who would neither care for nor pay much attention to your children
• The cousin who has always been spiteful to your kids but appears stable and loving in court.

What if the court overlooks these possibilities:

• A cousin who lives in another state
• Your best friend who lives with your family and cares for your children often
• Your partner, whom you have dated for 2 years and whose children treat your children as siblings

If you make the choice now, your children will reap the benefits later if the unexpected happens. Don’t let family and friends fight over who should have your children. Choose someone who loves them and will continue to love them.

Choose Well

Certain characteristics are important in a parent or guardian. For example, these abilities are crucial:

• Really see each child for who they are
• Love unconditionally
• Provide for physical needs
• Be nurturing and protective
• Disciplined but not controlling

Choose someone you can depend on even if it is not convenient for them. Ensure they understand by having a discussion about guardianship. Make sure that a potential guardian understands the responsibility you are asking them to take on if you suddenly pass away.

Consequences to Your Children

Don’t let lack of planning send your children to foster care. If no one steps forward in court and agrees to care for your children, they could end up in a system that is meant to help only the most desperate and unloved children in our society. No child wants to be placed in foster care. 

We have all heard stories about foster homes where kids were unloved. Our state does the best it can to make sure that each foster home is a good place for a child to live, but the reality is that there are many children who need care, There are not enough good homes for these children. 

Choose a Guardian 

Whoever you choose to be a guardian for your children does not have to be the same person you would choose to handle your finances. If you have multiple bank accounts, trusts, or retirement funds, you could leave the responsibility for those accounts to someone else who would give resources to the guardian as needed for the children.

The guardian for your children is a “fiduciary” in the sense that they must use assets for the children’s best interest. They must be honest in their accounting of the money. However, they do not have to be the one you choose to manage a trust or multiple investment accounts. You can appoint someone else to manage your money.

A guardian who manages only the money invests and holds your money in a responsible manner. They must by law act in your best interest, keep your property and accounts separate from their own, and keep good records. They must also decide how much money the other guardian needs for the care of the children, including money for education and other expenses.

We Can Help

If you are unsure how to go about designating a guardian for your children, contact our knowledgeable estate planning attorneys at Vail Gardner Law. We can help you see the steps to draw up a plan for your children should the unthinkable happen. Make the best choices for their future. Contact us to start creating your will and making your plans today.