When both parents die, it is ultimately up to the court to determine who will raise the child. Not having the proper documents can complicate and delay this process for family and friends.
A Plate with sign family law, figurines and gavel.
According to the U.S. Census Bureau, roughly 3% of children are without parents, which usually means the court must appoint a guardian. For this reason, it is essential to plan and create the legal documents for child custody if both parents die. Documents help protect children, reduce family conflict, and clarify your intentions.
A Will
A will is the most common way for parents to name a guardian for their child. A will is a legal document that includes the name of the person who will raise the child if both parents die.
If the parents do not have a will, a judge will determine who will take custody. This may cause family conflict and lead to court battles. For example, one of your relatives may want to raise your child, but the court could choose your cousin instead. A will makes your wishes known and gives the court a solid starting point.
If the parents do not have a will, a judge will determine who will take custody. This may cause family conflict and lead to court battles. For example, one of your relatives may want to raise your child, but the court could choose your cousin instead. A will makes your wishes known and gives the court a solid starting point. In situations where a will is absent, seeking legal support for probate cases can help navigate the complexities and ensure that the child’s best interests are prioritized.
Legal Guardianship Designation
A guardianship designation is another document that names who will care for your child. Unlike a will, where you have guided the judge about your wishes, but a judge selects the guardian, the guardianship designation states who you want to be the guardian and nothing else. This document is far more formal than any verbal agreement and can save time in court.
Parents should select someone who can be trusted to care for and who is willing and able to raise the child. They should also consider financial well-being, health, and the person’s relationship with the child. Documenting this decision eliminates confusion.
Power of Attorney for Minor Children
A power of attorney gives a trusted adult the authority to make short-term decisions for your child. These decisions could cover a medical, school, or travel scenarios.
This document is handy when parents die suddenly and a guardian has not been appointed yet. A power of attorney ensures that the child has care in the interim. When a family friend has power of attorney, they can approve medical treatment immediately, rather than waiting for a court to assign a guardian.
Living Trust
A living trust is different from all the other documents. Instead of naming a guardian, it manages funds and property for the child. Parents create a trust and hold assets in it for a trustee to oversee.
Establishing a trust allows parents to create a financially secure future for their children. The American Bar Association added that trusts may help keep families out of probate court while allowing for a child’s needs to be addressed expeditiously.
Key Takeaways
- Work with a family law attorney to ensure that you are complying with all legal requirements. Each state has different rules regarding the items above, and it is helpful to work with an attorney who understands the relevant statutes.
- Conduct a review of custodial documents regularly. A rule of thumb regarding when to consider updating custodial documents is after any life-changing experience—divorce, another child born, etc.
- Discussing the custodial role with the guardian to eliminate any misunderstandings and ensure that they can carry out your wishes.
- A will allows you to indicate your preferences regarding guardianship of children and reduces the likelihood of family disputes arising.
- Designated guardianship assures you that your wishes are written down or articulated.
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