What Happens to your Minor Kids if you Don’t have a Will?

When you’re planning a family, you envision all the wonderful memories you’ll make together. No one wants to think about what would happen to their children if you passed away unexpectedly, but, planning for your children’s future is an important part of responsible parenting.

Parents often want to know…what will happen to my minor children if something happens to me? And the answer depends of whether or not you’ve put a Will in place that addresses the issue.

Some Important Concepts

When a Guardian is appointed for a minor child, there are three types of appointments: Guardian of the Person, Guardian of the Estate, Guardian of the Person and Estate.

Guardian of the Person

Guardian of the Person is in charge of caring for your child’s person. That is, their physical, emotional, and social well-being. This person will make decisions for your child’s education, social, and other activities and will authorize medical or other professional care, treatment, or advice. He or she has the powers and responsibilities of a parent, except that he or she is not obligated to provide for the child from their own funds.

Guardian of the Person doesn’t have the ability to handle your child’s finances.

Guardian of the Estate

Guardian of the Estate is in charge of handling your child’s money and making financial decisions for your child. This person will handle any money the child has in his own right as well as any money the child receives before turning 18.

Guardian of the Estate generally doesn’t have the authority to make decisions relating to your child’s physical, emotional, and social well-being.

Guardian of the Person and Estate

Guardian of the Person and Estate is a person who has the rights and responsibilities of both a Guardian of the Person and a Guardian of the Estate.

If someone is not appointed as Guardian of the Person and Estate, that means that different people are in charge of your child’s person and your child’s money.

While that spreads the responsibility among multiple people and might therefore be seen as a “safer” option, it is also more difficult for the Guardians. For example, if these powers are split up, the Guardian of the Person might want to enroll your child in ballet lessons or sign them up for a travelling baseball team, but they have to get the money (permission?) to do so from the Guardian of the Estate.

Without a Last Will and Testament

The Guardian

If something happens to you and you don’t have a Will, the first person entitled to become guardian of your children and their estate is their surviving parent.

If both parents are gone, the children’s closest living blood relatives have priority standing to become their guardian.

For example, if you and your spouse pass away, but you both have surviving parents, both sets of grandparents have equal priority to become the children’s guardians. If you don’t have surviving parents, but you both have surviving siblings, your siblings would have equal priority to become the children’s guardians.

Importantly, this may or may not match what you would want to have happen. Also, because multiple people might have equal priority to become the children’s guardians, there could ultimately be a long battle in Court ahead for your family.

Often, parents are concerned that their own parents would not be in a position to care for young children or have very strong feelings that a particular person should (or should not!) be the guardian.

If you don’t have a Will in place that addresses who should be your children’s guardians in your absence, you won’t have a say in the matter after you’re gone.

The Money

Once a Guardian of your child’s Estate is appointed by the Court, they will manage your child’s money and make expenditures on their behalf until they are 18. At the age of 18, your children have the right to take over control of the money and do what they please with it.

It’s possible for someone to file an application with the Court to have the Court create a trust that will hold the money for a longer period of time, but, of course, each application to the Court costs additional money.

It’s also important to note that, if you don’t have a Will, the Guardians appointed by the Court will be required to get bonded (an additional, annual expense). This functions like an insurance policy.

With a Last Will and Testament

The Guardian

If you and your spouse put Wills in place, you can appoint Guardians for your children’s Person and Estate if something happens to you. You decide who to appoint and what authority you want that person to have (e.g. Guardian of the Person, Guardian of the Estate, or Guardian of the Person and Estate).

The person appointed in your Will makes an application to the County Surrogate’s Court to obtain legal authority to care for your children and/or handle their financial affairs. The Court has the final authority to make the appointment and can inquire into the best interests of the child but typically defers to the choices the parents made in their Wills.

The Money

With a Will, you decide who will handle your children’s money and when your children will receive the money outright. Parents usually feel that 18 is too young for a child to receive all of their money outright.

A simple trust can be built into your Will to hold the money until the child is a suitable age (e.g. 21, 25, etc.), while still ensuring the money is available, under the supervision of a trusted adult, for the child’s health, education, maintenance, and support.

You’ve planned for dinner, after-school activities, summer camp, and college– but have you planned to take care of your children if you couldn’t be there to do it yourself?