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What Happens To Minor Children When Parents Pass Without Estate Plan Documents

an estate plan and minor children

An estate plan is often the last thing on the mind of parents with young children. But, the fact is that accidents happen and you could die, leaving behind your minor child.

This is just one reason an estate plan is important and it’s imperative for parents to consider and plan for this absolute worst-case scenario.

The first thing you’ll want to consider in an estate plan is who gets custody of your minor child/children if both you and your spouse were to die?

If one spouse survives, the answer is clear. However, the answer isn’t so simple if you were both to die in an accident which is why it’s important to have an estate plan in place that names a legal guardian to care for your minor child. Failure to do so can have devastating consequences, with the child ending up as a ward of the state.

A legal guardian, or conservator, is an adult who has the legal authority to care for a child should the natural parents die before the child reaches adulthood. The person who has custody is called the guardian of the child, while the person who manages the child’s assets is called the guardian of the estate. This can be the same person, or the two roles can be assumed by different people.

Naming a legal guardian is probably one of the hardest decisions parents have to make, but it’s an important one. Unless you nominate a legal guardian in your will – an important part of your estate plan – a third party with “legitimate interests” could step forward and petition the court for custody.

Guardianship is an important responsibility. Ask yourself if the person you want to nominate is emotionally, financially, and physically able to care for your child. Select two or three potential candidates and arrange a meeting with them to discuss your decision. It’s wise to pick an alternate guardian just in case something should happen to your first choice. Review your decision every two to three years in case circumstances change.

These are difficult decisions to make. However, they are important in the rare event that something tragic should happen to both you and your spouse.

If you would like to discuss setting up an estate plan, give our office a call.

It’s so much better to be prepared for the worst-case scenarios. And with young children, it’s absolutely imperative.


Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!

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