Guardianship of a Child vs. Guardian of the Estate

Parents always want what is best for their children. While death can be a difficult topic to consider by many young parents, it is detrimental that parents are aware that lack of appropriate planning can place their minor children in foster care, if both parents pass away.

When both parents of a minor child pass away there are two things the court must handle. The court must appoint a guardianship for the child and the court must also appoint an individual as a guardian of the estate of the child. While it is possible for one person to step into the shoes of both of these roles, there are also other options to consider.

In the event when parents live separately, if the custodial parent passes away, the other parent is the first person the court will consider, especially for guardianship of the child. If there are issues with the other parent, that can be detrimental to the care of the child, such as mental problems, alcohol or drug abuse, the custodial parent should choose another guardian and indicate that in his or her will. The custodial parent can also write a letter to the judge and keep it with the will, explaining why another guardian was chosen, and explain that it is not simply because the custodial parent does not like the other parent, but rather there are more important things to consider for the best interest of the child. In that case, the court should consider the custodial parent’s wishes and look at other options.

In addition, when parents are separated, if the custodial parent passes away and there is an inheritance that the minor child is receiving, the custodial parent might not want the other parent handling the inheritance. In that case, the custodial parent, may point out in the will that while the other parent should be the guardian of the person for the child, another person should be appointed as the guardian of the estate.

In cases where both parents pass away, the parents should include in their wills who they want to be appointed as a guardian of the person, as well as the estate of the child. In most cases, parents should try to choose a person who they will want to appoint as both, in order to limit confusions, issues, and court interference. If for some reason they choose a different person for the guardianship and a different one for the estate, they should indicate the reason for doing so.

Lastly, whether the parents live together or not, they should discuss the matter of a guardian and ensure that if they were both to pass away that the same person is chosen by both of them, in order to avoid confusion. If each parent chooses a different guardian it will be up to the court to make the determination on who will be appointing, which means that the decision may not be the best for the child or may be far from the parents’ wishes.

To discuss what is best for you and your family, please call/text 216-586-4246 to schedule an appointment.

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