Whether you’re a parent of teens, or have recently welcomed a new baby into your life, chances are you’ve asked yourself this question:
What happens to my kids if I die?
This question can be especially loaded if you’re a single parent.
Have you done everything possible to care for them?
To make sure that your wishes are honored, and decisions about your children’s future is not left up to the courts, here’s what you need to know about what happens to the child when a parent dies.
- What is estate planning?
- What happens when one parent dies?
- What happens when both parents die?
- Creating a will as a single parent
- Setting up a living trust
- Setting up guardianship
What is estate planning?
Estate planning is the legal process of transferring your wealth after death. Estate planning can also include a living will.
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Estate planning can involve life insurance, and plans for creating a trust, philanthropy, and ensuring that the people you want to receive your money, investments, real estate, and items of sentimental and monetary value do indeed receive them in the event of your passing.
Estate planning can also include strategies for minimizing the sum of taxes your heirs will pay on any inheritance.
Estate planning also makes plans for any minor children or dependents who rely on you.
What documents are essential for estate planning?
These three documents are key to estate planning:
Will — a will details what happens to your property when you pass.
Trust — a trust is a legal entity into which any property or funds are transferred, and then managed.
Power of attorney — this establishes who will legally responsible for making decisions on behalf of your estate when you pass.
Do I need an estate planning attorney?
It is advisable to have an attorney go over any estate plan that you create yourself, including forms that you buy online.
What happens when one parent dies?
When a parent dies, what happens to your child depends on a few factors:
- Whether you’re married to the other parent
- The custody arrangements if you’re divorced or were never married to the other parent, and
- If you have a will
If the legal mother and father are married to each other, this question is easy to answer: When one parent passes on, the surviving parent gets custody.
But what if you’re not married—or were never married to your child’s father?
According to the U.S. Census Bureau, 27% of kids live with single parents. Where your children are placed should you die depends on your legal rights as a father or as a mother.
When thinking about what happens if you’re divorced and die without a will, these questions may come up:
- If a mother dies, does the father automatically get custody?
- If a father dies, does the mother automatically get custody?
If the other parent is at all involved in the child’s life, and there is a custody and visitation schedule in place, chances are good the child will live full-time with the child’s surviving parent.
If the parent with sole custody dies, the court will decide whether to place your kids with the non-custodial parent based on what is best for the children. Grandparents can get custody over the father or mother if one or the other isn’t safe or practical — say, if one parent is incarcerated, addicted, or has been largely absent from the child’s life. But the child is most often placed with the surviving parent when the custodial parent dies.
What happens when both parents die?
Having a situation where both parents depart this life at the same time is rare, but it’s a good example of why every parent needs to have a will. Otherwise, you have no say in who cares for your child because the decision rests with the court.
If this happens, the first thing you need to know is that child custody only applies to parents.
When another adult — such as a grandparent, friend, or another relative — is given the responsibility to care for your child through a will, custody no longer applies. Instead, the court will appoint them as the legal guardian of your child.
Definition: legal guardian
A legal guardian is someone appointed by the court with legal authority and responsibility to care for a child. This person may also be responsible for the child’s legal and financial affairs, but not necessarily.
In some cases, especially if there is a large sum of money from an inheritance or life insurance policy, a conservator is appointed by a judge to manage the financial affairs of a child. This person may also be the legal guardian, but can also be a second person.
Where single parents can find the best, affordable life insurance (no medical exam) in 2023
To have some control over who gets guardianship and conservatorship, a will or a living trust in place is critical. You might see it as complicated and expensive, but companies like LegalZoom can get you set up with the documents you need for an affordable price.
Wealthysinglemommy founder Emma Johnson used LegalZoom’s Living Trust bundle, which includes documents for power of attorney, living trust, a living will — plus one year free, unlimited attorney advice and review.
But before you whip out your credit card to place an order, you need to know what a few terms actually mean.
What is a will?
A will is short for last will and testament, which is a legal document that details how you want your property to be distributed when you die. A will, considered a foundational element of an estate plan, is also the formal documentation that lets you express the preferred guardian of your children.
According to LegalZoom, the information in your will supersedes any other document provided it has been executed wholly and correctly.
What should a single parent will include?
A few essentials you’ll want to include if you’re creating your own will include:
- Naming someone you trust as executor who will carry out the terms of your will
- The debts and taxes your estate could owe after your death
- The assets you own such as real estate, vehicles, bank accounts, and personal belongings, as well as life insurance payouts.
- Specifics about how you wish your assets be allocated to care for your children.
- The full names, birth dates, and Social Security numbers of the any other beneficiaries you want to receive your belongings or assets.
- Naming a person to take care of your kids if you and the other parent both pass away (nominating someone as a second choice is a good idea, too), or if the children’s other parent is not part of their lives.
- Alternative guardians in the event your first choice for legal guardian is unwilling or unable to care for your child
- If you have a pet, thinking about who could care for them after you’re gone
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What is a living trust?
A living trust is a written legal document that places your assets in a trust for the purpose of protecting them during your life and after you pass on. The main advantage of a trust is being able to distribute your possessions after you die without going through probate court.
At this point, you’re probably wondering about the main differences between a will or a living trust.
Living trusts guide the way your assets are distributed upon your death, and they do so without the need for probate court. Having a will only, on the other hand, does not help your heirs avoid probate court. While probate court mainly exists to ensure your debts are paid and your assets are distributed fairly, there are a few things that can go wrong. For example, the probate court can decide your will is invalid. Also, it’s possible someone could contest the contents of your will, which means your assets may or may not wind up where you wanted them to be.
Now that you’re familiar with these documents, you’ll want to ask yourself do I need a will or living trust?
While you might think it doesn’t matter, you might not get what you want unless you have a will because laws in each state determine what happens to your children and your stuff. This means that, without a will or living trust, you won’t have any say over who gets custody of your kids, your family heirlooms, jewelry, baseball card collection, or anything else after you check out of this life.
What does a single parent living trust include?
Your single-parent living trust should include:
- Durable power of attorney
- Advanced health care directive or health care power of attorney
- HIPAA authorization or waiver
- Living trust
What is an advance directive?
If you find yourself in a coma or unable to speak, your loved ones and the medical staff won’t know whether you want life support or to be resuscitated. Having an advance directive can communicate your wishes and appoint someone to be your medical power of attorney to make decisions on your behalf.
What is an advance directive vs. a living will? A living will is part of your advance directive which describes the types of healthcare you want to receive if you can’t speak for yourself.
Create your own will: Best places to write your own single parent will
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How to make a will for child custody
As you can see, having a will is an important part of being a parent. However, the next question is: “How much does a will cost, and how do you make one?”
Hiring an attorney can be reasonably affordable if your case is very simple, with few assets or complications. Expect to pay $1,000 to $2,000 for this type of service.
If you have considerable assets, including multiple homes, many brokerage accounts, business holdings, then you will want to hire an estate attorney to help.
Likewise, if you have a complicated relationship with your child’s other parent who does not have equal legal custody, you have a special needs child who requires special considerations, or you are responsible for a disabled or aged loved one, a skill attorney is worth the investment.
If you’re at least 18 years old, are of sound mind, and have a couple of people who can sign as witnesses, you’re off to a good start.
Once you have your will, be sure to have it officially notarized, keep it safe by making copies and finding a fireproof lockbox, bank deposit box, or filing cabinet to store them in. Also, keep a copy with your attorney, or a trusted friend (the executor of your estate is a good choice) — as well as store it on the cloud, and give access to a trusted friend.
Also, remember that life is always changing, and you’ll want to review and update your will if there’s a divorce, change of financial circumstances (you lost your house or business), a child turns 18 or graduates from college, or a new grandchild is born.
Where to keep a will
The critical part to remember is that a will is a legal document that must meet specific standards. Every state has different laws about how to make a will, and yours won’t be valid if it doesn’t meet your own state’s legal requirements. There are a few main standards to follow, however. For example, your will needs to follow a universally accepted format and it needs a valid signature. A valid will should also be executed by someone who has “testamentary capacity” as well, although each state has its own guidelines in terms of what exactly constitutes sound mind.
Your will should always be in writing, and it should involve more than jotting down a few lines on the back of an envelope. While some states would allow it, getting the court to recognize something that informal can complicate the entire process.
Also, make sure your signature and the signatures of two witnesses are on the last page. Having your will notarized isn’t a requirement in every state, but it’s a good idea and can speed up the court process after you pass away.
Finally, if you’re in a position of wanting to write someone out of getting any inheritance, you must specifically include that in writing in your will. Otherwise, that person could argue that you forgot to include them and they might even end up with a portion of your estate.
What if there are complications?
Life is complicated and child custody issues aren’t always as cut and dry as you’d like them to be. In messy custody situations, you may not like the idea of your children being placed with the other parent if you die while they’re still young.
What if you have a child with special needs?
In these situations, an attorney specializing in special needs families is important. If you’ve never worked with an attorney before, finding one who is trustworthy is always a concern. You could always check Yelp reviews or Avvo, but the best approach is talking with family, friends or other professionals like an accountant or financial planner to get a recommendation.
As for how much you’ll pay, attorney’s fees vary across the board. After talking to a few legal offices, you’ll notice that costs tend to fall into two rate structures, either hourly or a flat-rate retainer fee. However, some attorneys use a combination of the two methods and require a retainer payment upfront plus an hourly rate after that money runs out.
The bottom line: If you feel you need professional legal advice, you can pay for help. Personalized legal advice can give you peace of mind and help make sure your estate is preserved when you die.
How to set up guardianship in case of death
If the children are still minors when you pass, establishing guardianship can be done one of two ways — with or without a will.
Setting up a guardianship with a will
With a will, you’ll have the satisfaction of knowing the court will follow your wishes unless your request is impractical, or the person doesn’t want the responsibility of caring for your children.
Ideally, you can establish guardianship for your kids by working work with the other parent and pick a person the two of you can agree on. This way, you both nominate the same person in your wills and the court can appoint a guardian with no trouble if you both die.
Whoever you chose to serve as guardian should have a copy of your will, and they can bring the document to the probate court when the time comes. Some states require the nominated guardian to fill out an application or petition before they’ll grant guardianship, and they’ll likely have to pay a filing fee, too.
Setting up guardianship without a will
When parents die without a will, the court can still appoint a guardian, although this isn’t the best situation since the courts won’t have any idea what your wishes are.
But someone needs to care for your kids, and the court should have legal guardianship forms available to fill out in case of your death.
In most jurisdictions, anyone with an interest in the minor’s care can fill out this form to request appointment as guardian, including a sibling if they’re at least 18 years old and can provide a stable home environment.
However, the courts will decide who gets guardianship of your minor children, and often look to grandparents, other relatives, or friends of the family to fill the role.
In the unfortunate event that a suitable person can’t be found, or if one isn’t willing to serve as guardian, foster care might be the only option and your child could end up as a ward of the state.
What will happen to your kids?
While making a will might feel overwhelming, it’s the most fundamental legal document for child custody if the parents die. LegalZoom has guardianship forms that can become part of your estate plan, making the process go much smoother.
Instead of leaving their well-being hanging in the balance, you’ll feel better knowing you helped choose who has custody of your kids if you pass away while they’re still young.
Bottom line: Should you have a will for a single parent as part of your estate planning? Yes, here’s why
According to Rocket Lawyer, if you die without leaving a will, your property and assets may not be divided according to your wishes, and your children’s guardianship could be left up to the courts.
Check out this video from Sarah Morris of Morris Law Center about why you should have an estate plan as a single parent:
As a single parent, you never want to imagine leaving your children behind, especially when they’re still young. But the reality is, bad things can and do happen. That’s why it’s crucial to ensure your children will be safely cared for and financially supported in the event of your passing.
If the legal mother and father are married to each other, this question is easy to answer: When one parent passes on, the surviving parent always gets custody. But what if you’re not married? Where your children are placed should you die depends on your legal rights as a father or as a mother.
Having a situation where both parents depart this life at the same time is rare, but it’s a good example of why every parent needs to have a will. Otherwise, you have no say in who cares for your child because the decision rests with the court. If this happens, the first thing you need to know is that child custody only applies to parents.
While making a will might feel overwhelming, it’s the most fundamental legal document for child custody if the parents die. Instead of leaving their well-being hanging in the balance, you’ll feel better knowing you helped choose who has custody of your kids if you pass away while they’re still young.
Incredible! Thank you so much for this article. As a single mother with sole custody of my son, this has been on my mind non-stop. Your article covers everything; I decided that I can definitely use one of the legal sites to create my will or trust. What I wonder is what amount or percentage do I award to the appointed guardian of my child either through the will or through life insurance? I think you’d likely want to include something for them in order to cover any costs associated with taking on the duties of settling your will and caring for your child. In my case its a friend rather than the other parent or other family members. Thank you again, I’m so so grateful for your amazing article.