Who Cares for the Child When Both Parents Pass Away

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As a parent, you’re concerned for your minor children should you pass away. Normally, the surviving parent retains custody. However, if both parents pass away, the court appoints a guardian. This may not be the person whom you would like to have custody. So, it’s important to have a Will that designates a guardian(s) because that person(s) will decide where your children live, how they’re raised, and how they’re educated. In addition, the guardian will be the person to love and emotionally support them. Just like designating executors and trustees, a contingent secondary guardian should be named in the Will in the event the primary guardian cannot serve.

Courts usually follow your choice when appointing a guardian. This tends to be the biggest issue that holds up estate planning because parents sometimes cannot agree on who should be guardian. Ideally, this should be someone who shares your values and child-raising philosophy.

A court won’t appoint a person to be a guardian if that person is unwilling. You should first discuss the responsibilities with the potential guardian and assess that person’s willingness and ability to act. When it comes to guardianship, this is no time for surprises.

Since the primary duty of your children’s guardian is to act as a surrogate parent, it’s important that they share an emotional bond. Usually, a family member whom the children trust is ideal, but parents should assess each case individually. A family member may not always be the best choice. If you have two or more children, it’s important to decide if you want them to remain together and to assess the guardian’s ability to care for them.

Sometimes parents designate grandparents as guardians, but grandparents may not be a good choice because of old age or poor health. A guardian must be able to assume parental responsibility until your child reaches the age of majority.

You should also consider the potential guardian’s own personal family situation. What is the relationship between the guardian’s children and your children? Will animosity exist between all parties involved?

A guardian has custody of a minor child and must care for him or her; but that person isn’t automatically responsible for inherited property. While a guardian is responsible for providing food, shelter, clothing, health care, and education to a minor, the guardian is entitled to reimbursement of the costs. A fiduciary (e.g. trustee or guardian of the property) appointed to manage a child’s property must distribute it for the minor’s support. Parents can designate the same or a different person(s) to be their child’s guardian and/or the property fiduciary, and parents should consider creating a trust to benefit their children. It’s important to provide sufficient funds to maintain the children throughout the guardianship. If funds are insufficient, the guardian may potentially strain his or her family budget causing animosity towards your children. Leaving life insurance proceeds to the guardian or in a trust could ease the financial burden.