If you have passed away without a Last Will and Testament, you are considered to have died “intestate”. Failing to have properly drafted and executed estate planning documents such as a Trust, Will, Durable Power of Attorney, a Health Care Power of Attorney, a Living Will may have serious consequences.
People often ask their estate planning attorney, what happens to my children if I die? A properly drafted Will usually has a clause included which allows you to designate who will be the guardian of your children while they are under 18 years of age. If this clause is non-existent in your Will, the State of North Carolina will determine who will be the caretaker of your children without your input.
Although the court system is not required to follow your wishes as to who you designate as the caretaker of your children, the court shall give substantial weight to your recommendations located in your Will if it is in the child’s best interest.
The following are helpful things to consider when designating a guardian, as the court will also consider them as well:
-Does the guardian have a good family structure?
-Will the guardian have available time and energy to dedicate to your child?
-Will the guardian have the emotional ability to care for your child?
-Does the guardian already have a relationship with the child and does the child already feel comfortable and familiar with the guardian?
-Can the guardian financially care for the child? Be aware that there are additional considerations regarding financial issues that must be discussed.
-Is the guardian located near other family members and loved ones?
-Is the guardian physically healthy and able to care for your child?
Clearly the guardian you designate to care for your child if you pass away will have a huge task ahead of them. Because this is such a monumental task, it is important to only nominate a guardian that you feel will be able to effectively raise your child. The more consideration you give before designating a guardian, the more likely a court will also follow your recommendations that you have outlined in your Will.
To ensure that your voice is heard when it comes to the care of your children, it is important to have a properly executed estate plan.
Contact us today at 910-769-6884 to discuss drafting a Will with a “Declaration of Guardian for Minor Children” clause.
