Question: My wife and I have two small children. We have some equity in our home, some investments and life insurance policies. We do not have wills. What will happen to our children should something happen to the two of us?
Answer: While leaving our children behind may conjure up visions of Oliver Twist and Annie, your child will not be forced into a criminal gang with Fagin, and she will not end up in a crowded orphanage where a billionaire will take her in.
Your question raises legal issues regarding intestacy, the laws that apply to the administration of a person’s property after death; and probate guardianship, the law relating to the care of children whose parents are unable to care for them.
When you make a will (which you should do after reading this column), you provide for the distribution of your property upon your death. You also select a person as “executor” of the will — i.e., the person who will administer your estate and execute your wishes.
In addition, you can also name a person to act as a guardian for your minor children. The process of having a guardian appointed is not automatic. The proposed guardian still will have to go to court to obtain the appropriate authorization to act from a judge. But in the event of a dispute about who should care for your child, your identification and preference of that person will be very persuasive in the court’s decision.
But your question is more immediate. You want to know what will happen now, if you and your wife died without the appropriate legal documentation. Under the intestacy statutes, the court will determine where your property goes. Assuming that your estate is community property and the two small children are your only kids, the estate will go to them.
As for the care of the children, the court will appoint a guardian for them. Guardians come in two forms: one who oversees the management of the property, called “guardian of the estate,” and the other, called the “guardian of the person,” who manages the day-to-day decisions related to the child. In many instances, one person can perform these two guardianship roles.
The guardian will be required to report to the court on his or her duties. On an annual basis, the guardian will file a confidential report with the court, and the court may even have a court-appointed investigator pay a visit to see how the child is doing. The guardian of the estate is required to account for money spent from the minor’s estate.
So the money that you will leave behind from the house, investments and any other property will be used by the guardian for your child and the guardian’s activities will be subject to review by the court. When the child turns 18 and is no longer a child, the guardian will turn the property over. One of the great advantages of properly drafted will is that you can choose to extend that age to sometime later (25, or even 30) so you child doesn’t take the money and blow it all on a fancy sports car.
The law seeks to protect minor children who have lost their parents, but the best course of action for you and your wife is to make your wishes known. Identify the person you believe would be the best to supervise and care your children, and dictate how your estate is to be distributed to them. Get the appropriate legal documents completed. Until you do, take a pass on the discount couples skydiving package.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm specializing in family law, estate planning and trust litigation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at www.kopperlaw.com
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