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Minor Custody after Death

Sacramento, CA |

How is a minor's custody determined if parents die? What type of document should all parents prepare to protect their children custody? For example, if they want the grandmother to be the guardian in the unfortunate event, is there a certain type of will, etc. that serves such needs?

Is there a smart way to avoid court and to keep children in their residence with their family in such cases?

Attorney Answers 4


  1. The parents should name a guardian in their will for this purpose. Talk to an attorney in your local area to have this prepared.

    Any individual seeking legal advice for their own situation should retain their own legal counsel as this response provides information that is general in nature and not specific to any person's unique situation. Circular 230 Disclaimer - Advice given in this response cannot be used to eliminate penalties with the IRS or any other governmental agency.


  2. All parents should appoint eventual legal guardians for their children in case of their death: primary designations, as well as secondary in case the primary choice is unable or unwilling to assume the role of guardian. This is a very difficult decision to make, and should be studied from all points of views: physical and financial resources, psychological considerations, geography, age, etc. This document should be separate from a will, as the other provisions of a will may be OK, and if the directive for a legal guardianship needs to be changed, then the rest of the will doesn't have to be changed. Assets for minors should always be left in trust, so that they don't get too much too soon.

    This is off-the-cuff advice and does not establish a client-lawyer privilege. Nothing I say here can be used to suggest the avoidance of taxes due. I am only licensed to practice in the state of Florida.


  3. This answer is given under the assumption that the parents and children reside in the State of California. Courts in the State of Residence have jurisdiction over minors.
    If both parents of a child die, the court will award custody or guardianship to one of two types of person:
    1. If the parents nominate a guardian in their will or in a separate document, the court will take this under consideration and give great weight to the deceased parents nomination. A nomination in Durable Powers of Attorny serve the same purpose in cases where the parents become so disabled that they cannot care for the children;
    2. If the parents die without leaving a written nomination of guardian for their minor children, then any interested party/family member may petition the court to be named guardian. Close family members will usually be given preference. If no one "steps up" and petitions the court, the Public Guardian will take charge of the children. Children over 14 years of age may testify before the court as to their preferences for a guardian if their is a contest between to family members competing for the guardianship.
    If a minor child is over 16 years of age and/or married they may file a Petition for Emancipation to allow them to care for themselves but the court will require that they can prove the ability to support themselves.

    The Court will always place the best interests of the children before all other considerations.
    You should seek legal advice from an attorney in the State in which the parents and children reside, on how to proceed based on the facts and the law.


  4. There really isn't a way to keep the issue of the guardianship of the person out of court. If a parent appoints soneone as guardian, that doesn't automatically happen when the parent dies. The person appointed will have to file a Petition for Appointment of Guardian, and the will will be evidence that the petitioner has priority to be appointed guardian. The Court has to issue an Order Appointing Guardian, and the guardian then gets Letters of Guardianship, which show that the guardian has the legal and physical custody of the child.

    Parents can keep the finances out of court, however, by setting up a living trust. The trust can provide that trust funds may be used to maintain the children in their home, and can also contain provisions regarding paying for the children's education, delaying distribution of the balance of the trust funds until the children reach a certain age, etc.

    Disclaimer: I hope you found this information helpful. If you did, please indicate so with a thumbs up. However, this answer is provided for general informational purposes only. This answer does not constitute legal advice and should not be relied on. Legal advice can only be provided after consultation with a licensed attorney in your state with experience in the area in which your concern lies. This is so because each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and/or documents at issue. This communication does not create an attorney-client relationship.

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