Estate Planning Family Law Legal Topics

If We Die, Where Will the Kids Go?

kid_137155350For every parent, the most important function of his or her will is the nomination of a guardian for minor children. We don’t like to think about death, and certainly not someone else raising our children, but every responsible parent needs to confront these difficult issues and nominate a guardian for his or her minor children.

A deceased parent’s clear-cut expression of choice of guardian in the will, together with the naming of alternates, serves the following purposes:

  • It reduces the delay in providing a guardian of the person of a minor after the parent’s death;
  • It spares the minor the agony of a family dispute over the appointment; and
  • It allows the parent to expand or limit the guardian’s authority to care for the minor.

If both parents agree on the proposed nomination before the will is executed, the surviving parent is more likely to consent to the nomination of a third person. In addition, their agreement may ensure that if both parents die in a common disaster, their wills will not contain conflicting nominations.

Testamentary nomination is particularly important when you or your client believes that an undesirable person is likely to seek appointment as guardian. If you give substantial reasons for the appointment in the will or other written instructions, this explanation may persuade the court to follow your intent, assuming that circumstances do not radically change between the time of will preparation and the date of death.

There are situations in which it may be wise to tell the child(ren) of the contemplated guardianship, e.g., when there’s terminal illness. If it’s not too disturbing to the child, this information may give a reassuring sense of continuity and help him or her accept the guardianship.

Don’t put it off: make sure that your will and those of your clients include a nomination of guardianship.

For more information on guardianships of person, including a sample form, turn to CEB’s California Will Drafting, chap 24. Also check out CEB’s California Guardianship Practice on this topic. Because this and so many other issues touch on both estate planning and family law issues, CEB created a book to cover both: Crossover Issues in Estate Planning and Family Law.

Other CEB blog posts you might find interesting:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

7 replies on “If We Die, Where Will the Kids Go?”

I often wonder what will happen to my little one if something happens to me… I currently have a restraining order against my ex-husband. He does not pay child support on a regular basis, and he is completely out of the picture. In other words, he has not seen our child since the divorce (many moons ago). If I dies does our child automatically go to him?

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