What Happens to Your Child if You Don’t Have a Will?

Estate Planning - August 11, 2020
Mother with toddler in her lap working on a tablet computer

Being prepared with a Will

A Will answers many lingering questions about your assets when you die, but its purpose is not to simply designate what will happen to your house and belongings. One of the most important reasons to have a Will is to select who will care for your minor children if something were to happen to you.

Without a Will, you forfeit your ability to have input into this decision. There are a few key Last Will and Testament considerations to take into account that specifically affect your children if you do not have a Will:

Who will care for your minor children?

If your child is a minor and you or your spouse passes away without a Will in place, the decision of who will take care of them is in the hands of your state’s court system.  

If there is another surviving biological parent, that individual will presumably take full custody of the child. If that person is not still alive, a court will designate a legal guardian for your child.  More likely than not, the guardian will be a biological relative to the child.

It’s in the best interest of the child.

Depending on state law, the court will normally take into consideration the best interest of the child in deciding custody or who will be a guardian. If a parent is deemed “unfit” by the court, they could name a thrid party as a guardian. It is important to state your wishes in these circumstances, but keep in mind that in general, a will does not change the rights of the other biological parent.

Perhaps your child has another willing caretaker figure that the court can appoint for the role. If the child is reaching an age close to adulthood, the judge may take the child’s preference into account. The age when a child can state their preference can vary by state.

A Will is necessary.

No one is exactly anticipating death to show up on their doorstep tomorrow, which is why thinking about these things and planning for them is difficult. Although it seems daunting, it’s critical to have a Will in place for the benefit of your child.

If you want any kind of say into who will care for your child and what they will inherit, become a LegalShield Member and get started on your Will today with an attorney who can help draft your Will. We make the process much easier, more streamlined, and provide professional guidance into every step of the process.

How will my assets be passed?

It’s a scary thought to not know where your home, money, and belongings will go when you die. A Will gives you the power to leave your legacy with whoever you want, or whichever organization you choose. Without it, state law will decide.

If you die without a will, you are considered “intestate”, which means the laws of the state will essentially make a Will for you. Depending on state law, usually, spouses and children will inherit an estate. Keep in mind there are assets that can pass outside an estate.  If you have no spouse at the time of death, your estate will normally go to your children.

Who will manage my minor children’s finances?

If your child is still a minor when you pass away, a conservator can be appointed by the court for the child. The conservator’s job is to manage the finances and assets that the minor child will be entitled to until the child reaches the age of majority (which is the age of 18 in most states). At that point, the role of the conservator is terminated.

Usually, the selected guardian will also be appointed the role of the conservator, however, it’s possible for these roles to be shared by two different people. If you have an individual (or perhaps bank) in mind that differs from the guardian you have selected, it’s important to note that in your Will.

If you think that, by the child’s age of maturity, you would like for them to continue to wait to access the funds, you can set up a trust for them. In your Will, you can specify what age your child should gain access to the trust.

Consult with a lawyer to get your Will started

Although preparing a Will seems complicated, the process doesn’t have to be. As a LegalShield Member, you have access to a dedicated law firm that can guide you through each step of the process. Simply download our LegalShield mobile app and answer a few easy questions within the Will questionnaire to start the process. Your law firm will contact you with any additional questions or documentation needed, then draft your Will.

Keep in mind that this is something that will really help address important issues related to your children, including who will care for them and manage their finances.  Although we don’t like to think about death, it’s essential to prepare for the unexpected for your family’s best interest. Learn more about why you should have a Will.

LegalShield provides access to legal services offered by a network of provider law firms to LegalShield Members through member-based participation. Neither LegalShield nor its officers, employees or sales associates directly or indirectly provide legal services, representation or advice. See a plan contract for specific state of residence for complete terms, coverage, amounts, and conditions. This is not intended to be legal advice. Please contact an attorney for legal advice or assistance. If you are a LegalShield member, you should contact your Provider Law Firm.