What Happens to a Minor When Their Parents Pass Away?



This is a question that weighs on many parents’ minds.


Leaving a child behind is never something you want to think about, especially if they are a minor. However, putting it at the forefront of your mind for just a little while can ensure they will be taken care of if they lose both parents before they are 18.


In this post, we will answer several questions we get asked by parents when they start their estate planning process.


Who Gets Custody if Both Parents Pass Away?


You get to decide who gets custody of your child if both parents pass away.


To ensure your child is taken care of by the appropriate party, you can do one of two things:

  • Write it in your will - You can designate guardianship in your will

  • Submit a guardianship designation - Fill out, and submit, a guardianship designation to a court

If you don’t detail who you want to take custody of your child in your will or guardianship designation, the court decides where the child goes. It’s usually a family member, but it might not be the best person to care for your child.


How Does a Court Decide Who Gets My Child if I Pass Away?


As mentioned above, a court will almost always pick a family member. In most states, your child will have a say in who they want to live with if they are at least 12-14 years old.


If they are younger, there is a chance your child will go to someone who isn't exactly your first choice.


The Surviving Parent

Almost always, the surviving parent will gain custody if you die.


If you and the child’s other parent pass, the process can get tricky. They will often pick the next closest family member, whoever that may be. However, if there are no surviving family members, or none of them can be reached, your child will likely be put into foster care.


Other family members or friends can petition in court for custody, but this is often an uphill battle.


They will have to prove that the current living situation of the child is poor and that it’s harmful to them in some way. Additionally, they will have to prove that they can provide a substantially better living situation. Both of these tasks are easier said than done when it comes to overturning a judge's initial custody ruling.


How Do I Make Sure the Right Person Gets Custody of My Child?


The only way to ensure your child is in the right hands is to designate who you want to be responsible for them either in your will or a guardianship designation.


This is one of the reasons estate planning is so important. Getting it out of the way will be a big weight off your shoulders and one less thing you have to worry about.


What Will My Children Get From My Estate?


You get to decide which parts of your estate (if any) you want your child to have.


Similar to guardianship designation, you will need to do this in your estate plan. The main way to allocate certain assets to your child is to outline what you want them to have in your will. You can also set up trusts with them as the beneficiary.


The difference between the two is that most trusts allow for immediate transfer upon your passing. Any estate you list in your will can take months to transfer.


Get Help With Estate Planning


We know passing before your child is a minor is never in the plans, but setting up a complete estate plan will give you peace of mind knowing they will be taken care of if the worst happens.


Give us a call or send us a message to get help with estate planning today. Our estate planning attorney will help you every step of the way to make the process quick and simple.


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