No one wants to think about dying and this may be particularly true when you have young children. However, preparing for your death is the best way you can protect your children from any legal fallout that may result from it. If you don’t leave a will, you'll entrust their fate to decisions made by an impersonal court.
If your ex is still living and he is your children’s biological parent, and if he comes forward to take custody of your children when you die, the court will almost always place your children with him. In legalese, this is the “parental right doctrine.” Unless he’s unfit or incapacitated, a parent always has the first right to his children before any other third party. This can be especially problematic if your ex is not the natural parent of all of your children. In such cases, the court may separate siblings and give custody to each of their biological parents.
If your children’s other parent predeceases you or his whereabouts are unknown, the court will name someone else as their guardian. If you’ve remarried and your children have a stepparent, if he’s willing, the court may allow your children to continue living with him. Laws vary from state to state and not all states will automatically place children with a family member, even if they are a grandparent, aunt or uncle. Judges weigh placement based on the best interests of the children. Your kids might have a close and loving relationship with your parents, but if your parents are elderly, the court might decide they’re not up to caring for them, especially if they're very young. A judge might instead name someone with whom your children would rather live. Some states, such as Colorado, will allow your children a say in the matter if they’re teenagers.
In a worst-case scenario, your children’s other parent may be unfit. He may have a drug or alcohol problem, or a lifestyle that’s not conducive to raising children. In this case, your family or someone else close to you would have to petition the probate court to overrule the parental right doctrine and name them as guardians. This effectively gives them custody, but it could mean a difficult court battle if your children's other parent resists. The individual who petitions for guardianship must usually have “standing” to do so, meaning the court recognizes he has some right to intervene. Laws defining standing vary from state to state.
When you die without a will, your property also becomes an issue. Your state’s intestacy laws take over and the court will distribute your assets to your next of kin based on an order of succession. Generally, spouses inherit first followed by children. If you’re divorced and have not remarried, this means all your property will go to your children. If they're minors, the probate court will also have to appoint a conservator for them, as well as a guardian. A conservator is someone who manages their financial affairs until they come of age. If your ex is still alive and gets custody when you die, the court will probably name him as their conservator. This means your ex now has control of everything your worked for and acquired during your lifetime. He would have to report to the court yearly regarding the status of your children’s finances and their inherited assets, but this may be small consolation. If he doesn’t handle the inheritance wisely, your children may have nothing left by the time they reach the age of majority.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.