What Happens to My Child If I Die?

What Happens to My Child If I Die?

As a parent, it is difficult to think of someone who can raise our children in our place. Yet, planning for guardianship of a child is one of the most important decisions a parent can make. If a parent does not have a parent guardianship plan in place, the State has a plan. How do you make a plan?

What is Guardianship?

Guardianship of Minors is different than Guardianship of an incapacitated or person with moderate to severe disabilities.  For a parent, a will is the most important tool in an estate plan.  Guardianship over a minor, is named in a parent’s  Last Will and Testament It is important that both parents talk together and decide who should be a guardian over your child.

Naming a Guardian

People naturally don’t want to think of an end of life scenario.  It is more difficult to prepare for the “what if” and leaving your child as an orphan. Don’t let the thought lead you to inaction. Not naming anyone makes it more difficult on your child and other family members.

Make sure your choice is a good choice. Parents need to think carefully about who will take care of a minor child.

Don’t surprise the potential guardian

A person may be a perfect fit but he or she also needs to agree to take on the responsibility. The first step starts with a conversation between parents. The second step is to have a conversation with at least 2 choices for a guardian. Discuss the guardianship issue to make sure everyone is on board.

Single Parents and Guardianship

The Last Will and Testament of the Surviving Parent who dies determines guardianship. Mom may have named her favorite sister to be the guardian if dad dies.  What if the father dies later and named his brother instead? the Father’s choice in the Last Will and Testament is the one who will be considered.

Where will your child live?

Another point to consider is where will the child live.  Will the child or children stay in the family home or move. Will the home be sold and equity put in trust for the child?

Moving a child out of his/her home state is a difficult decision.  If both parents die, then prepare your guardian with  legal understanding of what will be needed to move your child to another state.

Who will manage the finances of taking care of the child.  Will you have a Trust in place? Is someone else better with money and will manage on the child’s behalf? You name a guardian in your Last Will and Testament for your child; however, your plan is not finished.

MO Law and Guardianship

Guardianship over a minor is decided in Probate Court.  MO Statute 475.045.1 provides the governing law for appointment of guardianship of a minor.  The Court keeps the parental decision in mind, but also will decide if the person is a qualified guardian.

A surviving parent, unless found to be unfit or incompetent becomes the minor child’s guardian.  Another named person will be considered unless the Probate Court decides that the person is unfit or incompetent to become guardian.

A Child over the age of fourteen years without a qualified living parent may nominate a guardian.  However, the Court will decide if the child’s choice is truly in his or her best interest.  If it is not in the best interest, the Court will look at your choice and choose a person willing to serve who provides a stable placement.

Guardianship Action

Parents know their children.  Parents need to choose the best guardian who can step into the shoes of raising a child. The Probate Court makes the final determination. I am here to provide legal counsel and help you form your plan.  Let’s put that Last Will and Testament into place.  Don’t leave your child’s future to chance.

Although it is difficult to think about, the best guardianship plan is one that the parents write. When my children were little, I had peace of mind with a plan in place for the just in case. I’m here to help you have peace of mind. Call me at 314-332-0011 for help with your plan. Book Now

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Sheri Tucker

Owner and Founder of Tucker Legal Services, LLC. I'm an attorney licensed since 1991 with a M.S. in Psychology. Member of ABA, MOBAR, BAMSL, Elder Counsel, Wealth Counsel, and NAELA.

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