Custody Conundrum – Both parents passed suddenly, now what?
The sobering truth about life is that sometimes the most unexpected situations arise that alters everyone’s life in a moment’s notice. While losing a parent is traumatic for anyone, it can prove particularly life altering for minor children. Consider a situation where both parents are in a fatal accident. In this situation, who gets custody of the children? The answer is, it depends. Depends on what though?
The parents die intestate?
In the first “it depends” situation, both parents are assumed to pass intestate. What does that mean? In short they passed without a Will. What happens to the children? There is no predetermined schedule for custody for a court to follow. The first concern of the court is the safety and future care of the children. To address this concern, they will look for close family members who are willing and able to take the children in. But, what happens if the surviving family members fight over custody? The decision is left up to the court to determine what is in the best interest of the child. At a certain age the child might have a say, however that is not always guaranteed.
The parents die testate?
A parent that dies testate, with a Will, can essentially give custody to whomever they chose. The court will usually honor the parent’s decision within their will so long as the individual gaining custody is deemed fit. Should the court deem the individual unfit, it will follow the same process it would if the parents passed intestate. Under this “it depends” situation, the parents largely have more control over the future guardians.
Addressing the issue at hand.
It is unsettling that as few as 36% of parents with children under the age of 18 have a Will or some sort of directive for emergency guardianship in place. (see caring.com 2017 will survey) In all fairness, the thought of leaving minor children behind is unpleasant for all parents, but a cohesive plan can start to provide some peace of mind. So, how does this plan come about? Start by establishing a preferred list of guardians after discussing the possibility of guardianship with the individuals on that list. Then include these individuals within your Will. This is just one of many situations that highlight the importance of a comprehensive estate plan. The Skeen Firm provides client tailored estate planning solutions to fit any need. Let us help you address tomorrow’s tough questions so you can live for today.