If You Have Children and Both Parents Die, What Happens to the Children Without a Will?
Usually, a surviving spouse retains custody if one parent dies. However, if both parents die and there is no plan in place, a judge decides who will raise your children, and it may not be who you would have chosen. Without knowing your wishes, the court acts in the best interest of the child. Typically, this means that the judge appoints a family member as a guardian, such as a grandparent, aunt, or uncle. If there are no remaining family members, your child could become a ward of the stage and enter the foster care system.
Are you comfortable with a judge making this type of decision and potentially having strangers raise your children? You can protect your little ones and gain peace of mind by creating a will and establishing guardianship in Billings, MT. This allows you to choose the person or couple to care for your children and raise them the way you would have. Some considerations to keep in mind when selecting a guardian for your children include:
- Lifestyle and religious beliefs
- Financial situation
- Proximity to your child’s home
- Your children know them
To avoid confusion and estate litigation, both parents should list the same person as guardian in each of their wills. Assuming the role of guardian for minors is a huge responsibility. You should talk with the person or couple you have in mind to be sure that they are up to the challenge if the unthinkable happens.
If you die without a will, your children will inherit their share of your estate. The assets will be held in an account until they reach their majority, typically 18 years old. In this situation, your property transfers to them, regardless of their ability to manage money or take on the responsibility of a house or other property.
You can help ease them into the responsibility by creating a trust for your children that can hold and manage your assets until a specific time. This could be upon reaching 18, but it may also be after graduating from college or other milestones. A trust can allow for distributions throughout their lives to cover health care, education, and maintenance. You can appoint a trustee to manage the account, and he or she may hire a financial advisor who can handle investing the trust assets.
You can name a successor executor who can administer your estate if you and your spouse both die unexpectedly. Even if you are healthy, drafting an estate plan can ensure your minor children are cared for financially and that they are placed with a guardian of your choosing.
If You are a Caregiver for an Adult Child or Other Family Member and You Die, What Happens to the Person You are Caring for?
Choosing a person who can take on the responsibilities of caring for an aging or disabled loved one if you die is a daunting prospect. Cognitive or physical impairments can prevent individuals from providing for themselves, making decisions, and living independently. Without proper planning, your child or family member may end up living in a state-run institution. However, adding a special needs trust to your estate plan can help provide for them without disqualifying them for public assistance.
Your child or loved one cannot have significant assets to qualify for government programs such as Medicaid, Social Security Disability Insurance, and Social Security income. If you name them as the beneficiary of a life insurance policy or leave your property to them in your will, it is considered income, and they may no longer be eligible. Creating a financial plan that includes special needs trust can help ensure that doesn’t happen. This financial instrument is funded by inheritance and is owned by the trust.
Public benefits can cover essential therapies and treatments, but the assets placed in a special needs trust can provide for supplemental needs and treatments that may enhance his or her life. There are two types of special needs trusts.
First-Part Special Needs Trusts
First-party SNTs are typically used when a person with a disability receives a court settlement, owns property outright or inherits money. These trusts can also be used when a person without disabilities has assets in their own name, becomes disabled later and needs to be eligible for government programs with an asset or income limitation.
Third-Party Special Needs Trusts
These trusts are often established in advanced planning to care for a loved one with special needs by parents or grandparents. Third-party SNTs may be created under a will or as a sub-trust within a living trust. They typically don’t exist until they are funded upon your death. A stand-alone SNT may be more beneficial if multiple donors plan to fund the trust. It exists during your lifetime and can accept gifts from individuals, such as family, friends, and grandparents, before you die. This type of trust can receive contributions from any third-party source after your death.
Every situation is different. The team at RMK Law in Billings, MT, works with clients to create living wills, advance directives, and trusts. We can help you design an estate plan that meets your specific needs. Contact us today to schedule a consultation and help ensure your loved ones are cared for after your death.
Unfortunately, a death in the family sometimes spawns problems that extend beyond the loss of a loved one. Disputes can arise over how assets are distributed or what the controlling documents mean; executors and personal representatives can neglect their duties, and both outsiders and family members can attempt to inappropriately influence wealth transfer decisions. All those problems and others can mean that litigation is necessary.
Family Conflicts & Disputes
If you find yourself in a conflict about ensuring assets are passed down consistent with the wishes of the deceased or need protection to keep assets protected from undue influence or fraud, our attorneys can step in to help.
Our experience includes:
- A Montana Supreme Court appeal that vindicated our client’s right to rely on the authority of the personal representative of an estate and resulted in the return of millions of dollars of mineral rights to our client.
- Helping a client navigate an extensive dispute against a personal representative who attempted to use his position to inappropriately reduce our client’s share of his inheritance.
- Representing numerous clients in probate litigation, including establishing conservatorships and guardianships for the protection of minors who have been catastrophically injured.