If both parents of a minor child under age 18 die, who will take custody of the child? This is a question worth planning for in advance so that your wishes, as a parent, can be carried out in the event of your death. In general, if only one parent (biological or adoptive) dies, the surviving parent will retain custody of the minor child. The most important event to plan for is the incapacitation or death of both parents, either simultaneously or in succession, leaving the child with no living parents. 

You are not planning for something that is certain or even likely to occur. The likelihood of both parents dying while the child is still a minor might be low, but the impact on your child’s life can be significant if contingency plans are not made thoughtfully in advance. The process to establish your estate plans and the documents involved are neither time consuming nor expensive. The peace of mind is priceless. Let’s discuss how to prepare these plans. 

The Role of a Guardian 

A minor child under the age of 18 needs a legal guardian to physically care for the child and make decisions concerning the education, health, and welfare of the child. A guardian can also manage the child’s inheritance and financial affairs. Typically, a guardian is not paid to take care of the child. 

A guardian with physical custody of a child can be anyone you choose and appoint in your will. People typically pick a family member, such as grandparents or aunts and uncles, although a close friend is not uncommon. You can choose someone who will raise your child in line with your wishes, whether that be based on geography or sharing your values in life or other ways. If the person is legally fit to serve as a guardian, the choice is yours. 

The guardian of your child can also manage any inheritance that the child receives at the time of your death. The guardian will be required to use the inheritance to pay for the child’s support, education, and needs while the child is a minor. Typically, when the child turns 18 any remaining inheritance will be given to the child, unless your estate documents say otherwise. 

Setting Up a Trust in Your Will 

Some parents may not want the guardian with physical custody of the child to manage the inheritance. Maybe the family member best suited to raise the child is not the best with money and someone else can help with the finances. Additionally, parents may prefer to have the inheritance managed beyond the age of 18, with payments and disbursements of principal occurring over a longer period. 

Your will can contain a provision to establish a testamentary trust. A testamentary trust is a trust that is created at the time of your death by your will. The will can create the trust contingent upon both parents being deceased. A trust provides you with more flexibility on how the assets you leave for your child are invested, managed, and disbursed. There are many options with trusts. You can give the child an equal share of the principal at milestones such as over a series of birthdays (maybe one third at 21, 25, and 30) or a major life event, such as graduating college or getting married. If you have a child with special needs, a trust is a way to provide for the child without jeopardizing their ability to receive governmental assistance. 

Trusts are subject to the same rules about inheritance taxes (if any taxes are due). A trust will likely incur additional costs if it comes into existence by the contingencies established in your will. Trusts require ongoing management, testamentary trusts may have recurring probate fees, and a trust will be taxed on any income it generates each year. 

Avoid Dying Intestate 

Intestate means dying without making a valid will. In general, when a person dies intestate the laws of the state will determine how the estate is divided. State law follows a process known as intestate succession to determine which family members take the deceased person’s assets. This process is based on blood lines and will depend on if the decedent is married and who survives them, such as children, siblings, and parents. 

As a parent, your assets are not the only aspect of your life the law will decide for you. If your minor child is left without a living parent, the court system will determine who will become the guardian of the child. The court will likely try to choose a living family member. Any interested party can petition the court for custody. You will have no say in who takes custody of your child, though. This means your child could be raised by someone you do not want to raise your child. The child could be moved out of their school district or out of state and have to adhere to a value system of which you do not approve. 

Other Considerations in Estate Planning 

You may also want to have other documents and plans in place to plan for unexpected events in life just like anyone, with or without minor children. A durable power of attorney will allow a person you name to manage your financial and legal matters if you are incapacitated or incompetent but not deceased, including serving as a temporary guardian of your child. Other documents to consider include a healthcare power of attorney and a living will. For more information about general estate planning, see our discussion of Three Essential Estate Planning Documents for Everyone Over 18.

Finally, stay up to date on your plans. Review your documents every year or two and make sure the written plan is the plan you still wish to see carried out. If any major life events happen, such as marriage, divorce, or the birth of a child, this presents a good opportunity to review your plans and make updates. 

NOTE OF GENERAL DISCLAIMER: No Attorney-Client Relationship is formed as a result of information provided on this Web site. The site is for informational purposes only and is not intended to give specific legal advice.