What Happens to My Kids If I Die Without a Will?

As a parent, one of your biggest concerns is ensuring your children are cared for, no matter what happens. But what if the unexpected occurs and you pass away without a last will and testament? Without proper estate planning, the fate of your children-where they will live, who will raise them, and how their inheritance is managed-may be left in the hands of the court.

In this article, we'll explore what happens to minor children if a parent dies intestate (without a will), how guardianship is determined, and why creating an estate plan is essential for protecting your family's future. If you need legal guidance in securing your children's future, contact us through our online form or call 414-253-8500.

What Does It Mean to Die Without a Will?

Dying intestate means passing away without a legally valid will in place. When this happens, your estate-including your assets, finances, and parental responsibilities-is handled according to state intestacy laws. These laws do not account for your personal wishes and may result in outcomes you never intended, especially when it comes to your children's care and inheritance.

Who Decides Who Raises My Children If I Die Without a Will?

If you die without a will, a court will determine who becomes the guardian of your minor children. The process typically follows these steps:

1. Surviving Parent Assumes Custody (if applicable)
   • If one parent dies, the surviving parent generally receives full custody unless they are deemed unfit due to issues like substance abuse, neglect, or criminal activity.
2. Court-Appointed Guardian If No Parent is Available
   • If both parents are deceased or the surviving parent is unfit, a court will appoint a guardian based on what it determines is in the child's best interest.
   • Family members, close relatives, or trusted family friends may petition the court for guardianship.
3. Judge's Decision Based on "Best Interests of the Child"
   • The court will evaluate potential guardians based on factors such as:
     • Their relationship with the child
     • Financial stability
     • Emotional and physical ability to care for the child
     • The child's preferences (if old enough to express them)

Since the court has no obligation to choose the person you would have wanted, your child could end up being raised by someone you wouldn't have chosen. This uncertainty is why naming a guardian in your will is critical.

What Happens to My Child's Inheritance Without a Will?

Without a will, state intestacy laws dictate how your assets are distributed. When minor children are involved, the following typically happens:

• Court-Controlled Guardianship of Assets

  • Minor children cannot directly inherit money or property.
  • Instead, the court appoints a guardian of the estate (who may or may not be the same as their legal guardian).
  • This person manages the child's inheritance until they reach adulthood (typically age 18).

• Funds Released at Age 18 (or 21, Depending on the State)

  • Once the child turns 18 (or 21 in some states), they receive their entire inheritance at once, regardless of their maturity or financial responsibility.
  • Without proper planning, a large sum of money handed over to an 18-year-old can easily be mismanaged.

If you want to control how and when your children receive their inheritance-such as distributing funds for college, living expenses, or milestone birthdays-a trust is a far better solution than leaving things to chance under intestacy laws.

How to Help Ensure Your Children Are Protected Through Estate Planning

The uncertainty of intestacy laws highlights the importance of creating an estate plan. By establishing a will and other legal documents, you can take control of your children's future, ensuring they are cared for according to your wishes. Here's how:

1. Name a Guardian in Your Will

A last will and testament allows you to designate a legal guardian for your children. This is one of the most critical aspects of estate planning for parents because:

• It ensures that your child is raised by someone you trust and who shares your values.
• It prevents unnecessary family disputes over guardianship.
• It avoids the court making a decision that may not align with your wishes.

When selecting a guardian, consider:

• Their ability to provide a stable home.Their financial situation and willingness to care for your children.Their relationship with your child.Their moral and religious values (if important to you).

2. Create a Trust for Your Child's Inheritance

A trust is an effective way to protect your child's financial future. Instead of assets going through probate and being released to your child at age 18, you can create a trust that:

• Appoints a trustee (a person you choose) to manage the funds.Specifies when and how the child receives the money (e.g., monthly stipends, college tuition payments).Protects the funds from mismanagement, creditors, or future lawsuits.

Common types of trusts for children include:

• Revocable Trusts - Can be changed during your lifetime and help avoid probate. (Learn more)
• Testamentary Trusts - Created through your will and activated after your death. (Learn more)
• Spendthrift Trusts - Protects against reckless spending or bad financial decisions. (Learn more)

3. Establish Powers of Attorney and Healthcare Directives

Estate planning is not just about what happens after death-it also protects your family if you become incapacitated. These documents ensure your children's needs are met even if you are unable to make decisions:

• Powers of Attorney - Designates someone to handle financial or legal matters. (Learn more)
• Healthcare Directives - Specifies your medical preferences and appoints a healthcare agent. (Learn more)

4. Update Beneficiary Designations

Many assets-such as life insurance policies, retirement accounts, and investment funds-are transferred through beneficiary designations, not a will. To ensure your children are financially protected, review and update these designations to reflect your wishes. (More info)

5. Avoid Probate to Simplify the Process for Your Family

Probate can be a time-consuming and costly process, delaying access to funds your children may need for their care. Setting up a trust or using transfer-on-death (TOD) or payable-on-death (POD) accounts can help avoid probate entirely. (Learn more)

Contact an Estate Planning Attorney for Parents

Planning for the unexpected is one of the greatest gifts you can give your children. Without a will, the court decides who raises them and how their inheritance is managed-often with unintended consequences. A comprehensive estate plan puts you in control, ensuring your children's future is secure and protected.

If you are a parent looking to create a will, trust, or estate plan, contact us at Heritage Law Office or call 414-253-8500 for legal guidance tailored to your family's needs.

Frequently Asked Questions (FAQs)

1. What happens if both parents die without a will?

If both parents pass away without a will, the court will determine who becomes the guardian of the children. Typically, close relatives such as grandparents, aunts, or uncles can petition for guardianship. However, if multiple family members apply, the court will decide based on the child's best interests. This process can be time-consuming, emotionally difficult, and may not result in the guardianship you would have chosen.

2. Can my children inherit my assets if I don't have a will?

Yes, but not directly. If you die intestate, your children's inheritance will be held in a court-supervised guardianship until they reach the legal age of adulthood (usually 18 or 21, depending on state law). Without a trust, they will receive their full inheritance at once, without restrictions or protections, which could lead to poor financial decisions.

3. Who gets custody of my child if I die and the other parent is alive?

In most cases, the surviving parent will automatically assume full custody unless they are deemed unfit due to reasons such as abuse, neglect, or incapacity. If the court determines the surviving parent is unfit, guardianship will be awarded based on the child's best interests. A legal battle could arise if multiple family members seek custody.

4. What is the difference between a will and a trust for my children's inheritance?

A will allows you to name a guardian for your children and specify asset distribution, but it does not prevent probate or provide financial protection after death. A trust, on the other hand, ensures assets are managed by a trustee and distributed according to your instructions-such as setting age-based payouts or covering educational expenses. Trusts also help avoid probate, providing faster access to funds for your children's care.

5. How can I make sure my child is financially supported if I pass away?

To ensure financial stability for your child, you should:

• Establish a will to name a guardian.
• Set up a trust to manage and distribute assets responsibly.
• Purchase life insurance with your child as a beneficiary.
• Update beneficiary designations on retirement accounts and financial assets.
• Appoint a trustee to oversee your child's inheritance until they reach a responsible age.

Without these legal safeguards, the court will control asset distribution, which may not align with your wishes.