What should I know about care of children when parents die?

Contents

• Who will care for my children if I die?

---

Who will care for my children if I die?

The courts make decisions about who cares for a child after a parent dies. The decision making process is different depending on whether both parents have died or whether one parent has survived.
 

Who cares for children if only one parent dies?

If one parent of a child dies, generally the other parent will get custody. The surviving parent will usually get custody even if: 

• the other parent has never had custody, and 

• if the deceased parent names someone else as guardian in their will. 

 

The court can decide that the surviving parent should not get custody based on the best interest of the child. The court must have good reason to award custody to someone other than the surviving parent. These reasons might include:

• The surviving parent abandoned the child,

• The surviving parent terminated their parental rights, or

• There is clear evidence that the surviving parent is unfit. 

 

Who cares for children if both parents die?

If both parents are deceased, custody will depend on whether the parents had a will. A will is a written document witnessed by others. It states how a person's property is to be divided after he or she dies. The writer can also direct who should take care of his or her children. 

 

Do I have a right to name a guardian for my child if I die?

You have the right to name a guardian for your kids in your will. However, this person will only be appointed by the court if both parents are deceased. Otherwise, even if you name someone else, the surviving parent will usually get custody of the child.

 

The person named in your will is called a testamentary guardian. Testamentary guardianship is a form of child custody. Unless there is good reason not to, the court will honor the wishes of the parents. If the person named in the will refuses or is not available to act in that capacity, the court may appoint someone else.

 

Who will care for my children if I do not appoint a guardian in my will?

If both parents are dead and there is no will naming a guardian, the probate court will name a guardian for the child. The probate court must appoint a permanent guardian who will serve the best interest of the minor. The court looks for a guardian in this order:

1. The adult who is the preference of the minor, if the minor is 14 years of age or older;

2. The nearest adult relative of the minor;

3. Other adult relatives of the minor;

4. Other adults who are related to the minor by marriage;

5. An adult who was designated in writing by either of the minor's natural guardians in a notarized document or document witnessed by two or more persons; or

6. An adult who has provided care or support for the minor or with whom the minor has lived.

 

However, the court has the right to make a decision in the best interest of the child. The court may disregard an individual who has preference and appoint an individual who has a lower preference or no preference. In determining what is in the best interest of the minor, the court may take into account any facts and circumstances presented to it, including the statement of a minor who is under 14 years of age.

Back to top

Contents

• How do I make a will?

---

How do I make a will?

It is best to have a will prepared by a lawyer because in order to be enforced, a will must be made properly. 

A will must:

• Be dated

• Have a signature that is properly witnessed by at least two people who do not inherit under the will

Be sure to name a testamentary guardian in your will. It is best if you and the other parent agree on the guardian and both name the same person.

Periodically review your will to be sure it is up to date. State laws may change. Once you make a will naming a testamentary guardian, if you divorce or have more children, talk to an attorney to see if the will is still valid.

Back to top