You wouldn’t leave your baby in the care of a stranger. Without a Will, that awful thought could become a reality.
If something happens to both parents, for example, a car accident and neither parent survives, without a Will in place naming a legal guardian, your children become wards of the State until a court can decide which relative or other person is “fit and willing” to care for them. This lengthy process may involve not only a criminal background check of the relative who is willing to care for your children but all their relatives as well. In the meantime, your children could be in temporary foster care with strangers licensed by the State to provide that care. If that isn’t scary, I don’t know what is — and heart-breaking for your children, who have already been traumatized by your death.
Your Will naming a legal guardian for your children will, except in the most unusual cases, be honored by the court. Of course, you want to consider the choice of guardian carefully. Do your children already have a relationship with this person? Do they live in proximity to you so that not much changes, in terms of schools and friends? Do they already have children so that your children could become too great a burden on the potential guardian’s household?
It is a very big decision! But make sure YOU are making that decision NOT the Court!
Another thing that happens if both parents die without a Will is that your children will inherit property outright. Although the guardian may be able to put that money into an account for the care and education of your children when they are 18 they are legally entitled to all of it. It’s not hard to imagine an 18- year old blowing money on a car, video games, and clothes rather than college tuition! The person selected as the guardian may be great with kids, but not so great with money. With a Will, you can establish a Trust for your children, name a Trustee (who may or may not be the same person as the guardian). You would be determining in advance how the money is to be managed for your children’s health, welfare, maintenance, and education. You may specify that your children will not get any money outright until they are older than 18, say, 21, or 25 or even 35! Money given when children are older is much less likely to be blown on frivolities.
The bottom line is: you have put a lot of care into creating your family and planning for the future which you intend to share with them. Don’t let all that go out the window by failing to get proper Wills in place to protect your children should something happen to you.
