WHAT HAPPENS TO MY MINOR CHILDREN IF I DIE WITHOUT AN ESTATE PLAN? If your spouse has died before you, or if you and your spouse die simultaneously, the probate court will decide who will be the guardian of your minor children (another expense). The court will not automatically place children with a family member, even if they are a grandparent, aunt or uncle. Judges weigh placement based on the best interests of the children and a background check on the potential guardian must be conducted before your children are placed with a court appointed guardian. This means your children most likely could be placed in foster care until the court has made a ruling. If there is any contest by a family member as to guardianship, they must petition the court, (another expense), and your children could remain in foster care until the matter is resolved.
Legal guardianship of your children should both parents be unavailable to provide for guardianship and custody of their children due to death, illness, or a court order restricting custody is extremely complex.
The transfer of custody and guardianship of your children must be provided in your Will nominating the legal guardians for your minor children to protect them from Foster Care and a court of competent jurisdiction deciding who should raise your children.
The legal process can leave your child traumatized after the loss of a parent being separated from their home, family members, including their own siblings, school and friends, and leaving them to be raised by someone chosen by a court, instead of your choice of a guardian.