in my divorce agreement I have sole custody but it states that custody would go to the other parent in the event if my death. However my ex husband has not been directly involved with the children (now 5&8) since the divorce. He is also here in the country illegally(came from Mexico across border illegally around 2000) I would like to leave custody to my brother in the event of my death. If I make a will stating so, will that holds up in court after I die?
put whatever you want in your will. no guarantee that it will work. the surviving parent has a superior right to custody. he can ask for it. the judge decides if he gets it. in re rls is the illinois supreme court case on it. also read the guardianship of minor section of the probate act.
Your will will not determine where the children will go in the event of your death. The natural parent of the child will have top priority. However, including such a provision in your will will demonstrate your desires. So, it may not hurt you to include such language in your will; it just won't be the controlling factor.
If you ex-husband agrees to waive his rights to custody of the children should you die, then ask him to enter into an agreement concerning the same and have it prepared by a domestic law attorney I your jurisdiction.
No communication here is intended to establish an attorney-client relationship. All responses provided are entirely un-researched, casual opinions and cannot be relied upon in any way or manner as legal advice.
You can start by updating your will, but in the event of your death, the natural parent would have priority.
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