Trusted Southern Ohio Attorneys

Who gets legal custody of my kids if I die?

On Behalf of | Aug 23, 2022 | Estate Planning

Younger people tend to put off planning their estates, thinking that this is something they will need to think about only when they were older. However, there are many good reasons for all adults to have an estate plan at any age. For parents who have young children, it is essential.

To emphasize how critical this is, it is wise to be aware of how the state laws address who will care for children if there was no estate plan or guardianship detailing what the parent wanted.

What does the law say about a child’s guardian after parental death?

Ohio state law is clear as to how children are cared for after a parent has died. If the other parent is still alive, then the law says that parents are natural guardians. They are responsible for the child’s care, education, nurturing, providing a safe environment and overseeing their estates. If one parent dies, then the child will generally be left in the care of the surviving parent unless there are extenuating circumstances that make it unsafe for the child. A spouse who is not the child’s biological parent can be named the guardian of the child if the parent has died.

When both parents have died, it gets more complicated. The court has certain rules for the guardianship of a minor when the parents are gone. If the child is at least 14, they can decide who their guardian will be. The court will approve it if the person is deemed suitable. It could be a grandparent, an aunt or uncle, an older sibling or other people who would care for the child. When no suitable person is named, the court will select a guardian just as it would for a child under 14.

The parents can determine who the child’s guardian will be as part of their will. This can avoid the need for a child to make the decision on their own or for the court to intervene. An example might be the child being sent to live with a relative the parents do not trust to provide adequate care. This can easily happen if the parents do not account for this possibility in their estate plan.

Another challenge will be the chance that the parents’ deaths left the child with a large insurance settlement or there is a legal filing for wrongful death. With money at stake, it could be an obstacle to find a trustworthy person to oversee the child’s affairs and give them the care they need.

Parents who want to name a guardian as part of their estate plan may need help

Creating an estate plan is necessary and beneficial to ensure a person’s goals are met. This is especially crucial when there are minor children whose future may be uncertain without specific details as to what the parent wants. Not all relatives want to be left with the child after a parent’s untimely death.

The person who would be next in line to care for the child could be deemed irresponsible by the parents and an estate plan can prevent them from being given custody. When thinking about these complex issues, it is essential to be prepared and having help with all areas of estate planning can account for these factors and give parents and children peace of mind.