One of the most important reasons for parents to create an estate plan when they have minor children is to provide directions on what should happen with the guardianship of their children in the event they die.
FindLaw explains that what happens to children when a parent dies will depend on whether the other parent is alive and the existing custody arrangements.
The death of one parent
If one parent dies but the children’s other parent is still alive, then the other parent will usually get custody of the children. The exception is if there was a situation of abuse or where the court limited or revoked parental rights from that parent.
If the other parent does not have custody rights, he or she may get temporary custody until the court can change the order. In the event the other parent is not in the picture but there is a stepparent, the stepparent can obtain temporary custody and go to court to seek legal custody of the children.
The death of both parents
If both parents die or the other parent is not able to take custody of the children, the court allows anyone to petition for custody, according to The Ledger. The court will consider anyone who has an interest in the care of the children as a potential guardian.
If a parent wants a specific person to be the guardian, he or she should put this in an estate plan. Parents can also complete a declaration of preneed guardian document, which they file with the court. This document also allows parents to state who can never be a guardian of their children.
If nobody offers to take custody and the parents did not have a legal guardian in place, then the children will become wards of the state and enter the foster system.