When you are a parent of young children, it can be hard to set aside time to plan for their future. At California Trusts Online, we try to make estate planning convenient and affordable so that parents of young children can focus on their children’s daily needs and their long-term needs.
The two most pressing questions that parents face are
1. Who will take care of my children if I cannot?
2. Where will my money (and other assets) go if I die?
Let’s take a look at both of these questions in several different situations.
1. Who will take care of my children if I cannot?
In most cases, a child’s parents are the child’s Guardians until the child turns 18 unless the parent’s parental rights have been terminated. If one parent dies, the other parent will be your child’s sole Guardian as long as the surviving parent’s parental rights have not been terminated. If both parents are unable to care for a child (because of any combination of death and/or terminated parental rights), a judge will appoint a Guardian for your child.
If your loved ones need to have a guardian appointed after both parents have died or lost their parental rights, the process requires filing a petition in court, submitting for an interview and appearing in court before a judge. Depending on your child’s age, the judge may order an interview of your child as well. If anyone contests the petition, it will be decided by a trial before a judge (no jury).
If the parent who died later nominated a Guardian in a Will, the judge will favor that person as your child’s Guardian. The judge does not have to appoint that person as your child’s Guardian, but the judge will give great weight to the parent’s choice. That is to say that judges normally appoint the parent’s choice unless the judge feels that the parent’s first choice is not appropriate because of drug addiction, criminal record, abuse allegations, or other serious factors.
If the parent who died later did not nominate a Guardian for your child before that parent died, the judge may consider the guardianship nomination of the parent who died first. If neither parent nominated a Guardian, the judge will consider a family member as the judge’s first choice. If no family members are appropriate choices, the judge will consider friends of the child’s family as the judge’s next choice. Under some circumstances, a professional fiduciary may be appointed as a child’s guardian if no family or friends are available.
Other factors that complicate the guardianship process are a child’s immigration status, a child’s Native American heritage, emancipation of the minor child, and delinquency of the minor child. This blog post does not address those issues. This blog post also does not address adoption. If you need information in these areas, please consult with a licensed attorney.
2. Where will my money (and other assets) go if I die?
If you die with a Will or Trust, your estate will be distributed according to the terms of your Will and/or Trust. If the terms of your Will and/or Trust are hard to interpret, a judge will try to determine your intent when you wrote the Will or Trust.
If you die without a Will or Trust, anything that you own in your own name will be distributed by the probate court according to the laws of intestacy. For purposes of this blog post to avoid discussion of community and separate property, we will assume that both parents have died and that the second-to-die spouse’s estate is being probated. Intestacy is a set of laws that are designed to distribute your assets on your death if you do not have an estate plan in place. They are based on the assumption that you want your family to inherit from you, and they give priority to family members who are more closely related to you.
The first group of people to inherit from you under intestacy are your issue—your children, grandchildren and great-grandchildren. If all of your children are alive, they will receive your assets in equal shares. If one of your children dies before you and is survived by children, your grandchildren will receive your child (their parent’s) share. The same is true for your great-grandchildren, etc. on down the line.
The second group of people to inherit from you are your parents. If you have no issue, your estate will be distributed to your parents who survive you in equal shares. So, if both of your parents are alive on your death, they each will receive 50% of your estate, and if one of your parents is alive on your death, that parent will receive 100% regardless of whether your siblings survive you.
If you have no surviving issue and your parents have both died before you, your estate will be split evenly between your siblings, and the share of any sibling who died before you will go equally to that sibling’s issue (your nieces and nephews). If you have no surviving issue, parents or siblings, your estate will go to your surviving grandparents, and if you have no surviving grandparents, your estate will go to the issue of your deceased grandparents (your aunts, uncles and cousins).
If you want to determine who will care for your child in case of your death and where your assets will go on your death, a Will and/or Trust may be right for you. Busy parents can fill out our questionnaire here, and you can take as many sessions as you need to complete the questionnaire using the "save and finish later" feature. If you have questions about how to complete the questionnaire, see our helpful video here.