Men's Issues - Women's Issues - Protecting
Your Children After a Parent Dies
PROTECTING YOUR CHILDREN AFTER A PARENT DIES
Appointing a Guardian
If you have children under the age of eighteen, you should seriously consider appointing
a Guardian for those children in the case of your death. If you and your spouse
die at the same time without such an appointment, a court will select a Guardian
for your children and manage their inheritance until they become adults and this
may not be someone to whom you want to entrust your children. The best place
to appoint a Guardian for your children is in your will.
Having a will which appoints a Guardian after your death provides a smooth transition
to a new care-giver and a new home. It permits the children and parents to choose
where the children will live, and prevents the children from unnecessarily
entering the foster
care system and maybe even being split up. It provides the parents with peace
of mind to know that, should something happen to them, their children will be
Planning your children’s custody after death is something that should be carefully
thought out. Who will raise your children in your absence and impart upon them the values
which are important to you? Who will be willing or, in case your estate is minimal, financially
able to do so? Careful consideration should be given to choosing a potential Guardian
for your children.
You may appoint a single Guardian or joint Guardians to act at the same time.
If you choose a single Guardian, it is often useful to indicate an alternate
case the first Guardian chosen predeceases or is later unable or unwilling
to act in that capacity. Before designating a Guardian or Guardians,
be sure to
individuals and discuss the matter to verify they are willing to act
in that capacity.
While your Guardianship appointment is not strictly binding on the court,
unless there is an appropriate legal challenge, the court will normally
in a will provided there is not a surviving parent. If there is a
surviving parent, that parent will have automatic Guardianship of the children.
Creating a Testamentary Trust and Designating a Trustee
If you have children under the age of majority or they will be beneficiaries under
your will, you should consider creating a testamentary trust through your will
the property which will be transferred to your children after your death. A testamentary
trust is useful if you are concerned that the children may lack the maturity
to handle their inheritance after age eighteen. If no such trust is created in
your will and
your beneficiaries are under the age of eighteen the inheritance will be held
in trust until your children reach the age of eighteen at which time they will
While eighteen was probably once a reasonable age, there is a growing tendency
to increase the specified age to receive an inheritance to between twenty-one
and twenty-five. The
majority of the time, most people would prefer closer to the age of twenty-five
because this allows for your children to complete their schooling prior to full
When you create a testamentary trust for your children, you will need to
appoint a Trustee. The Trustee controls the money you leave in trust
for your minor children.
the Trustee is a relative or close friend who has similar values and standards
to yours and may even be the Guardian you have appointed for the children.
When creating the trust, you should provide that the Trustee of your
inheritance is able to use the funds for the benefit of the heir(s), at the discretion
of the Trustee, prior to their age of receiving the inheritance. This allows for providing
living, educational, lifestyle or other expenses to be paid prior to the age required
in the will. In fact, most clauses of this nature give an absolute discretion to the
Trustee to even pay out all of the funds prior to the specified age, at the discretion
of the Trustee.
Careful planning for your children’s futures after your death can ensure that your
children will be well-cared for, raised with the proper values and provided for financially.
If you don’t presently have a will which covers these issues, you should consider
consulting with an attorney to address custody planning after your death.
Back to Men's Issues
Back to Women's Issues