What Happens to My Kids if I Die Without a Will & I Am Divorced?

By Beverly Bird

No one wants to think about dying and this may be particularly true when you have young children. However, preparing for your death is the best way you can protect your children from any legal fallout that may result from it. If you don’t leave a will, you'll entrust their fate to decisions made by an impersonal court.

Non-Custodial Parent

If your ex is still living and he is your children’s biological parent, and if he comes forward to take custody of your children when you die, the court will almost always place your children with him. In legalese, this is the “parental right doctrine.” Unless he’s unfit or incapacitated, a parent always has the first right to his children before any other third party. This can be especially problematic if your ex is not the natural parent of all of your children. In such cases, the court may separate siblings and give custody to each of their biological parents.

Third-Party Guardian

If your children’s other parent predeceases you or his whereabouts are unknown, the court will name someone else as their guardian. If you’ve remarried and your children have a stepparent, if he’s willing, the court may allow your children to continue living with him. Laws vary from state to state and not all states will 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. Your kids might have a close and loving relationship with your parents, but if your parents are elderly, the court might decide they’re not up to caring for them, especially if they're very young. A judge might instead name someone with whom your children would rather live. Some states, such as Colorado, will allow your children a say in the matter if they’re teenagers.

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Custody Disputes

In a worst-case scenario, your children’s other parent may be unfit. He may have a drug or alcohol problem, or a lifestyle that’s not conducive to raising children. In this case, your family or someone else close to you would have to petition the probate court to overrule the parental right doctrine and name them as guardians. This effectively gives them custody, but it could mean a difficult court battle if your children's other parent resists. The individual who petitions for guardianship must usually have “standing” to do so, meaning the court recognizes he has some right to intervene. Laws defining standing vary from state to state.

Assets

When you die without a will, your property also becomes an issue. Your state’s intestacy laws take over and the court will distribute your assets to your next of kin based on an order of succession. Generally, spouses inherit first followed by children. If you’re divorced and have not remarried, this means all your property will go to your children. If they're minors, the probate court will also have to appoint a conservator for them, as well as a guardian. A conservator is someone who manages their financial affairs until they come of age. If your ex is still alive and gets custody when you die, the court will probably name him as their conservator. This means your ex now has control of everything your worked for and acquired during your lifetime. He would have to report to the court yearly regarding the status of your children’s finances and their inherited assets, but this may be small consolation. If he doesn’t handle the inheritance wisely, your children may have nothing left by the time they reach the age of majority.

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Custody of a Minor Child When the Natural Parents Die

References

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In Texas What Will Happen to My House if I Die Without a Will?

According to the law firm of Ford and Mathiason, under no circumstance will your home go to the state or to a stranger if you die intestate, or without a will. Texas statutes lay out a defined hierarchy for the inheritance of real property. It is extremely involved, however, so it may be a good idea to either make a will or consult with an attorney to make sure you correctly understand the order of succession for inheritance.

Wills in Virginia

Writing a will allows you to decide before your death who is going to get your assets, who is going to oversee the process of transferring them to those people and who will be the guardian of your minor children after your death, if you have any. To a great extent, you take the power of these decisions away from the court. Laws regarding wills vary from state to state. Title 64.1 of the Code of Virginia lists the state's requirements and provisions for wills and estate matters.

How to Set Up a Trust for Minor Children

Setting up a trust is largely a matter of making long-term decisions. When you’re establishing one for children, the implications of those decisions may reach even further into the future. The advantage to this is that your wealth can hopefully grow and compound by the time it reaches their hands. A disadvantage is that you might have to predict and accommodate the adults they will eventually become.

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