Planning your estate is a vital step in protecting your family’s future.
Establishing a will is one of the methods of protecting your assets while providing for your family.
However, it is easy to forget that separate planning is necessary to ensure the stability of your children’s future.
What happens when you don’t name a guardian in your estate plan? Who cares for your children if your spouse dies with you?
Here are your options for minor child guardianship in your estate plan, and what will happen when you don’t have one in place.
The natural guardian of your child, by law, is your child’s surviving parent. Natural guardianship is granted in cases where:
- Your minor child is unmarried
- You are living with your child’s biological parent at the time of your death
- Your child’s surviving biological parent is deemed “competent” in a court of law
Upon your death, your child’s biological surviving parent becomes the legal guardian of your child.
Your child’s surviving biological parent cannot be barred from natural guardianship unless they are reasonably deemed incompetent by a court of law.
While drafting your Virginia will, you need to think about naming suitable candidates who are able to take over your parental role in your absence.
Your child’s testamentary guardian is someone legally appointed by you, the parent, to assume the rights and responsibilities of minor guardianship.
This form of guardianship is ideal for planning what happens to your child if you and your spouse die together.
A testamentary guardian operates as an alternate for your child’s natural guardian.
However, the testamentary guardian is not entitled to legal custody of your child unless both parents are deceased.
If either parent is alive and deemed fit to retain legal custody rights, the testamentary guardian cannot be granted legal custody.
The testamentary guardian is able to care for the minor and accept the role of guardianship even if there is a surviving parent, so long as they have waived their rights to natural guardianship.
Keep in mind that appointing a testamentary guardian isn’t a foolproof protection for your children.
You will need to consult the person or people you are naming, and ensure that they are aware of the responsibilities that they are accepting.
Appointment of a named legal guardian becomes void if:
- Your testamentary guardian renounces the responsibility
- Your guardian fails to appear in court to accept the guardianship role
If your named testamentary guardian is unable to be appointed, the court will name a new guardian.
Court Appointed Guardianship
The appointment of a legal guardian for minor children is handled by the circuit court of the child’s residency.
Without documentation of your child’s testamentary guardian, the court is unable to deduce your custody wishes.
Therefore, your child will be appointed a legal guardian.
This guardian will likely be family, as the court proceeds by contacting your living relatives.
In Virginia, the child becomes a ward of the Commonwealth until a suitable guardian is found.
In Virginia, a minor that is 14 years-old or older can nominate their own guardian.
This individual must be found competent and suitable for the responsibility by a court of law.
The nominated guardian cannot be unrelated unless 30 days have passed between the death of the parents.
This allotment allows for relatives to petition the court for custody of the child before a guardian outside of the family is sought.
However, the court retains the power to overrule a minor’s nomination of guardianship if the named guardian is deemed incompetent by a court of law.
Temporary guardianship is appointed by the court when there is absence of a guardian for the child.
The temporary guardian steps in while a guardian is being sought, or when one is appointed by the court until the current guardian can be replaced.
As the title suggests, a temporary guardianship is one that lasts only a short amount of time.
The temporary guardian is granted full power and responsibility of a guardian, just as a testamentary guardian, without legal custody of the minor.
Virginia law automatically grants spousal child custody succession.
However, if you want to appoint a sibling, a parent, or close family friend to be granted custody of your children in the event that you and your spouse die, you will want to appropriately include your guardianship decisions in your will.
Schedule a consultation with our estate planning attorney to make sure you’re adequately planning for your children’s future.