I am of the age where a good chunk of my friends have a young child or even more than one child (gasp!)...generally their kids are "watch him around the stove" and "don't let her eat grapes that aren't cut in half" ages. They look kinda like the baby in the picture, but since none of my friends' kids are as cute as that baby, I used a stranger's baby I found in a Google search...I mean, er, I'm protecting their privacy...Anyways, so most of my friends know that I do "Wills and stuff" and since so many of them are producing not-cute-enough-to-be-on-Google babies, I get a fair amount of questions, and concern, about what would happen to their children and all of their money, house, etc. if they die and don't have a Will. (I'm going to capitalize the word Will to distinguish it from the normal word "will"for clarity sake, but it is generally not capitalized. My English major side of me needed to make that clear.) And, since this is the 21st century, I'm going to tackle this question for my married friends, my unmarried-but-happily-coupled-with-children friends and my I-basically-raise-my-child-alone-and-his/her-other- parent-couldn't-keep-a-goldfish-alive-for-more-than-a-day-let-alone-raise-a-child friends.
First quick note. Just because you name a guardian in a Will doesn't automatically mean no one has to go to court. In most states, a guardian named in a Will still has to be approved by the court. The biggest thing naming a guardian does is give that guardian first priority over anyone else who seeks to be the guardian, and lets the court know that this is who the parents, who know the child the best, chose to trust their child with. That tends to go a pretty long way and carry alot of weight. Unless of course you're planning on naming Heidi and Spencer as the guardian of your child, in which case, I hope the judge has watched at least one episode of The Hills, maybe even that episode of I'm a Celebrity Get Me Out of Here as well, and makes the right decision. Also, in that case, I'm calling social services immediately.
Oh and one more thing, I need to make a BIG GIANT DISCLAIMER on this issue (ayep, I'm a lawyer...). I am only a lawyer in Massachusetts. I can't give specifics about what would happen in other states, only broad generalizations that are based on some light internet research. I don't care what state you are in, anyone and EVERYONE with children should have a Will. And while I'm here lecturing you about estate plans, anyone and EVERYONE over the age of 18 should have a Will, a Health Care Proxy (or your state's equivalent) and Durable Power of Attorney AT THE VERY LEAST. Even if you don't own anything, you want someone who can tell the doctors what to do if you're unconscious (that's the health care thing) and someone who can make sure your bills are paid on time if you're laid up for a few days, a few months or a few years (that's the power of attorney). Lecture over.
Let's start with Mr. and Mrs. Married. If Mr. married dies without a Will, and they have a child, the child stays with Mrs. Married. What happens to Mr. Married's property really varies from state to state, but Mrs. Married will get something. If they own their house as "joint tenants with rights of survivorship" or "tenants by the entirety" then Mrs. Married automatically gets the house without any probate (read: court) proceedings. You can find out how your house is owned by looking at the deed. You can look up most deeds on the internet nowadays by searching the "Registry of Deeds" in the county you live in. Can't wait to check it out? I'll give you a second....Ok, so also, anything owned in both people's names (joint bank accounts, joint investments) or anything that has a beneficiary named on it (retirement accounts are a good example of something that usually makes you name a beneficiary) will also go to whoever is named as the beneficiary without any probate proceedings. This is actually true for Marrieds AND Unmarrieds. Because joint accounts and things with beneficiaries named go directly to the joint accountholder and beneficiary, this is a GREAT way to have property pass outside of any court proceedings. But avoiding probate is another topic for another day.
Now, if Mr. and Mrs. Married die at the same time, someone will need to become the guardian of their child. If there is no Will, then who that guardian is depends on who files in court to be the guardian and who the court decides is the best choice. Generally (remember, I only know Massachusetts law) preference is given to blood relatives and in some states, a close friend would not even be allowed to petition for guardianship if they were not blood-related to the child. Where it can get even more sticky and awful is if there is more than one person who wants to be the guardian then there are generally lengthy court proceedings, involving deep investigations into each potential guardian, and the court (not the parents who know all these people and who know the child the best...because they didn't leave a will) decides who the child belongs with. And who does the child stay with during all this litigiation? Well, most courts have provisions for emergency, temporary guardianships (that's what happened in Michael Jackson's case), so the child is not necessarily homeless. But it still involves having to rush into court at a really traumatic time in everyone's life. Not very pleasant.
As for Mr. and Ms. Unmarried-but-Happily-Coupled-With-Children. If Mr. Happy Unmarried dies, and has no Will, Ms. Happy Unmarried would have custody of the child. As for property, she would only receive what was owned jointly between them. The child may get some of Mr.'s property, but in some states (Massachusetts being one of them), not all his property goes to his child, some could go to siblings and some to his parents even. (Has it sunk in that people REALLY need wills yet?) If both Mr. and Ms. Happy Unmarried die at the same time, and have no Will, then it is the same scenario as described for the Marrieds, which I shall hereinafter forever affectionately refer to as "Battle of the Guardians."
The bottom line for both the Marrieds and Unmarrieds is that if you and your child's other parent don't have a Will, all that knowledge that you have about your family and friends will be useless. Who has a discipline style that you agree with? Who can best financially support an additional (or first?) child in their home? Who does the child know and feel close to? Do you want them to stay in the same school district? Or do you want them only raised by family? Who is going to make sure your kid only eats organic lollipops!?!....Seriously though, this poor kid will have just lost both of his/her parents, what is going to be the best place for him/her? Do you really want a judge who will know your child for only as long as the court case lasts deciding who will raise the person you have known his/her entire life?? I'm pretty sure you're saying no and looking up estate planning attorneys in the phone book (shameless plug for myself and any of my fellow Massholes reading this -- I do great estate plans!)...but let me give my single parents out there some attention before I wrap this up.
If you are a single parent, and I'm not talking about my happy single parent friends who have great co-parenting relationships with their child's other parent. If you are single, have a child, are not living with your child's other parent, but have a great working relationship and trust in you child's other parent, then you STILL NEED A WILL. And while you and the other parent's Will is individual, you may want to consult with each other about who a good guardian would be and name the same person. Not required, just advisable, and I'll elaborate on what it means to name different guardians at the end of this whole shebang.
Ok, so if you are a single parent and your child's other parent is an unfit parent (I'm not talking about the fact that you cant't stand each other, I'm talking about your child would be in danger in the other parent's care if they were to care for the child unsupervised for lengthy periods of time) then you REALLY need a Will. Because otherwise, that other parent is who your child goes to automatically. And that best friend you have who has watched your child and you trust with your life and your kids are best friends? It could be the case that she/he would not even be able to file for guardianship because they are not family. And all the money you've managed to scrape together for college? And your personal belongings? And your car? Most of it passes to the child, some of it may go to your siblings or parents, and because the child is a minor, it is the other parent that controls what the child gets. Having a Will and naming a guardian does not in any way guarantee the other parent won't prove themself fit to take custody of the child, but it at the very least, can MAKE them prove they are fit to a judge.
Final note. Everyone's Will, even you Marrieds out there, is individual and therefore, it is possible to name different guardians. If this happens, and you each die at different times, then the second parent to die's Will is the guardian who is first in line. If you die at the same time, your child and the named guardians could be in for a "Battle of the Guardians." So generally, it is advisable to name the same guardian. This a really important discussion and there is no right answer that works for every couple. The child's personality, personal relationships, even where you live (for example, you don't want your child to have to move from New Jersey to California where your closest family lives) are just a few of the infinite number of factors that you can consider in naming a guardian.
So take the time, call an attorney, get a Will, throw in a Health Care Proxy (or whatever your state uses to let someone else make health care decisions for you if you're unconscious) and Durable Power of Attorney while you're at it, and sleep (if your kids aren't keeping you up) a little more soundly at night knowing that if both of your child's parents are hit by the same bus, they're taken care of the way YOU want them to be.
