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Making a Will: We Do Not Own Our Children

It is well known that if you die without a will, you have no say over who gets your property after you die. California, like every other state, has default rules that determine who gets your money, real estate, investments and other assets in the absence of a valid will. As you have not made your views known, the people who benefit from your property may be different to who you would have chosen if you’d made a will. This is not breaking news for most people. But have you thought about what happens to your minor children if you die? What if the unthinkable happens and both parents die at the same time? Who will get custody of your children? It’s difficult to think about, but think about it we must.

If you nominate a legal guardian in your will, surely that solves the problem? As with most legal questions, the answer is yes, and no. Unlike in the case of property, we do not own our children. We do not have the right to pass them to someone of our choosing. Rather, a court will determine who should be the child’s legal guardian, based on what the court decides to be the best interests of the child.

That being said, you absolutely should nominate someone in your will. Most California courts will operate under the presumption that no one knows more about what is in a child’s best interests than that child’s parents. Unless the court finds that the person you nominated is unsuitable or there is some obvious reasons to disregard your selection, it is very likely that the court will honor your wishes. Of course, if both parents are unable to agree on who should be the legal guardian if they both die, and both select different people in their wills, the court will have to decide between the two competing selections, based on what is in the best interests of the child. If at all possible, try to reach agreement on this important matter so that it doesn’t get litigated through the courts at a time when your children will have enough emotional turmoil to contend with. Consider whether mediation may help to get you and your partner on the same page.

So how should you go about choosing a legal guardian for your child? Sit down with your child’s other parent and come up with a list of names. Think about who would be a good match for your child or children. If your child is sensitive or shy, take that it into account. Equally, if your child is gregarious and the life and soul of the party, leaving him or her to a family of introverts may not be the best choice. The financial circumstances of potential suitors should also be considered.

Depending on how religious you are, religion may also be a factor in your decision. Whoever you finally settle on, don’t forget to ask them! Becoming a legal guardian to someone else’s children is a high honor, but also a major responsibility. You may find that your chosen person or couple does not want to take this on.

But whatever you do, be sure to select someone in your will. This is too important a decision to be left to the whim of a judge. The judge may have very different values to yours. What he thinks is in the best interests of your child may bear no resemblance to what you believe. Give yourself the best chance of having your wishes honored and name someone in your will.

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