For Parents

     One of the most satisfying aspects of being an estate planning attorney is when I have the opportunity to help parents of minor children establish a plan for the care and guardianship of their children should something happen to the parents. It is extremely satisfying to give parents the peace of mind in knowing that they will have a say in deciding who will take care of their children and how their children will receive their inheritance should they become orphans.

     As parents, we all plan on raising our children into adulthood. Most of the time that happens, but unfortunately life doesn't always go as planned. What happens when parents die without a will?

Guardianship of the Children

     If both parents die, or if the surviving parent does not have custody (i.e., due to a divorce), a judge will decide who will raise the children. This process can be costly and take a great deal of time as the court will listen to testimony from family and friends as to who should raise the children. The process typically also involves the appointment of an investigator to look into all of the individuals who apply to the court to become the guardian of the children.

Guardianship of the Estate

     The deceased parents' assets go their "heirs at law." This means the assets will be distributed according to the provisions of the Probate Code, and not necessarily how the parents would want their assets distributed (for example, if one parent dies leaving a surviving spouse, a percentage of the deceased parent's separate property will go to the children, instead of all of it going to the surviving spouse).

     Assets that pass to the children will go into separate, court-supervised trusts for each child and will be distributed to them when they turn 18 years old. Among the issues this creates include:

1. The guardian or surviving parent's ability to care for the children can be limited. For example, if one child has special needs, the guardian or surviving parent cannot dip into another child's trust fund to care for the child with the special needs, no matter how urgent the need; and
2. The lump sum distribution, at age 18, makes the entire inheritance more susceptible to the risk of being squandered at an early age.

     Establishing an estate plan can give you the peace of mind in knowing that if something were to happen to you, your children would be cared for by the people you choose and receive their inheritance in the manner you decide.