What Happens to Minor Children if Their Parents Die?

You’ve likely heard the proverb, “It takes a village to raise a child.” Well, if you have children, nieces, nephews, or grandchildren that are minors, then you should have a family conversation about guardianship and what happens to minor children if their parents die.

Best case scenario: The parents have a Last Will and Testament that names a guardian, and maybe even have a Trust set up with funds to care for their children in their absence.

Worst case scenario: When parents die without a Last Will and Testament naming a guardian for minor children, the courts typically step in to choose a surviving family member to take custody of the children. This is a life-altering moment for everyone involved affecting both lifestyle and financial circumstances.

As a parent, I often find myself worrying about everything. Are my kids getting what they need? Do they feel loved? Are they safe?

Rilus Law managing partner, Attorney Rilus Dana, with his 3 sons.

Being a parent is a balance between embracing that you can’t control everything and planning ahead for the things you can control. This is one of the many reasons that everyone must name guardians for minor children in their Last Will and Testament! Even if you don’t have children of your own or if the only minor children in your life are grandkids, you may very well end up being a state-appointed guardian. So, sharing what you know about estate planning and encouraging the parents in your life to put their wishes in writing can make that experience a lot easier for everyone involved. In this article, I discuss what happens to minor children if parents pass away without naming physical and financial guardians for their children.

Question 1: If you were to pass away unexpectedly, who would your child live with?

This would be the Legal Guardian. They are responsible for the physical well-being of the child but do not have the authority to manage their money. The courts will generally follow your wishes and appoint the person designated to be the guardian in your Last Will and Testament. The exception would be if the court finds that it is not in the child’s best interest. The court will have to appoint the guardian, but first responders are usually able to place the children with either a family member or the person named in a legal document.

If the person you have appointed as guardian lives out of the country or out of state, you may consider naming a temporary guardian that can care for the children and keep them out of the government system until the permanent guardian arrives. This proved to be particularly important in 2020, as a temporary guardian can step in for you if you are hospitalized or stranded while traveling due to COVID-19 or other factors.

When an estate plan does not name a guardian, the courts will choose one. In most cases, a family member steps forward; however, problems arise when there are multiple family members or friends who 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. If there is no surviving family and no one steps forward, it would be up to the government to place them in a facility or foster care.

To learn more about guardianship and the factors that go into this decision, click here to read our blog, “Minor Children Guardianship: All You Need to Know.”

Question 2: Who will take care of the finances for your minor children?

If you named your minor child as a beneficiary on your life insurance or IRA, the company won’t be able to send a check to a child under 18. The court will determine who is allowed to manage money for your children and will supervise the use of the funds. This person is sometimes called a Conservator. When your children turn 18, they can then terminate the conservatorship and receive a lump sum of the remaining money to use as they wish. Conservatorships are often done in conjunction with a guardianship hearing and the same person can be both the Guardian and Conservator, but they are two different roles.

Question 3: Who will pay to raise your children?

As a parent, it is your responsibility to provide for your children if you pass away while they are minors. For instance, if you name your sister as the guardian, could she afford the expense of raising your children? As a grandparent, would you be able to take on the cost of your grandchildren? This is an important conversation if you may be appointed the guardian of any children in your family.

If you have not accumulated enough assets to provide for your children in the event of your death, then life insurance is a great solution to this problem. A term life insurance policy is relatively inexpensive and ensures that your children would be financially provided for.

Question 4: How do you protect your children?

No one wants to think about what will happen after you’re gone, but it is essential if you want to protect your children. If you don’t have a proper estate plan, the government will control what happens to your children and your money. A Revocable Trust appoints a person to manage money on behalf of your minor children and avoids a state-appointed conservatorship.

Take charge by creating a plan for your family!

If you are the parent of minor children and would like to make sure they are protected, Rilus Law can help. Call to schedule your free Personal Family Legal Session to discuss Will and Trust options with one of our experienced attorneys. If you’re not ready for a custom attorney-prepared estate plan, you can complete your Will and name guardians for your children in a matter of minutes with our Free Estate Plan: Last Will and Testament Template.