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What happens to Minor Children if Mom and Dad pass away? 

By: Attorney Rilus Dana

© 2013

There are two major issues that would have to be considered if Mom and Dad passed away, leaving minor children behind.  The first issue you should consider is who will be responsible for the physical well-being of your children.  This person would be called the guardian and he or she would be responsible for raising your children.  The second issue to consider is who will manage the money for your children.  A well drafted estate plan will address both of these issues.  If you don’t have an estate plan drafted properly, then the government will control what happens.

If your estate plan fails to name the successor guardian for your children, then the courts will have to get involved to name a successor guardian. In most cases, a family member steps forward, however, problems arise when there are multiple family members or multiple people that think that they should be the guardian of your children.  Everyone interested in being appointed will have a chance to plead their case in court. You should have the peace of mind that the government is looking after your children’s best interest since it will decide who is best suited to raise your children.  Unfortunately, this process could take some time and become very unpleasant seen in some recent celebrity cases such as Michael Jackson and Anna Nicole Smith.  Even worse than family members fighting over who should raise the kids, what if nobody wants to raise your kids.  Where would they go?  They would go into the state system and be placed in foster care.

As a parent it is your responsibility to provide for your children in the event that you pass away while they are minors.   For instance, if you name your sister as the guardian, could she afford the expense of raising an extra child or several children?  If you have not accumulated enough assets during your life so that your children would be provided for in the event of your death, then life insurance is the best tool to solve this problem.   A term life insurance policy is relatively inexpensive and ensures that your children would be financially provided for.

Now let’s assume that you are responsible and have some life insurance and/or assets that would be left behind.  Who will manage that money?  This depends on who you name as the beneficiary. For example, if you name your Mom or your brother as a beneficiary with the intention they will use the money for your children, then those assets will go to your Mom or brother, however, they have no legal duty to use that money for your children.  While I am a believer that people are generally good and do the right thing, it is my experience as an attorney that is not always reality.

What if you haven’t named anyone as a beneficiary, or you named your minor children as a beneficiary?  The result is the same.  Your children would be the beneficiary, however, is the life insurance company going to write a check to a seven year old?  Without any kind of estate planning, again, you’re leaving it up to the government to sort out who should manage the money for your children.  Similar to the proceeding to determine who the guardian of your children will be, the court will determine who is allowed to manage money for your children. This person is called a conservator.    What happens to the funds when your children turn 18 and become “adults”?   Your children can terminate the conservatorship and receive a lump sum of the remaining money to use as they wish.  Let the party begin!

The choice is yours.  You can take charge and decide who should care for your children in your absence, or you can allow the government to take care of it for you. If you would like to appoint a guardian and conservator over your minor children, call our office today for a free consultation at 1-800-753-3262.