Nobody wants to dwell on worst-case scenarios, especially when untimely “death is on the line” (credit to Vizzini, in Princess Bride). However, a little preparation can go a long way in the wake of a tragedy. When two parents die without a will, a series of tricky legal procedures are set into motion, and the outcomes might not be what the parents would have wanted. Conscientious estate planning now can protect surviving children from serious potential consequences.

What Happens if Both Parents Die Without a Will?

Guardianship: The Basics

When parents die intestate (in laymen’s terms: dying without a will), the big decisions, such as who will take care of the surviving children, are left to the courts. In other words, if you die without a will, your wishes may not be part of the guardianship decision.

What Does a Guardian Do?

Guadianship is a big deal. This is the person who will make decisions about health care, education, pass on important values, ensure the kids are eating healthy and brushing their teeth twice a day, and generally be there for them when they need an adult who cares for them to give them a hug, an idea, a guardrail. There are so many factors that go into caretaking so it’s not a decision you want to leave up to chance (and maybe not to the cool sibling who is fun, but cannot seem to get anywhere on time).

Selecting a Guardian: The Messy Way

Of course, the courts will try their best to choose a suitable Guardian. Normally, the role goes to close relatives such as grandparents, siblings, aunts, and uncles. In situations where there are multiple options, the courts will evaluate each case to determine the best fit. This takes time, which is time when the grieving child could use some certainty.

Leaving guardianship up to the courts can open the door for nasty quarrels, as multiple family members might feel they are the best choice to be the guardian. Infighting doesn’t just leave a bad taste in everyone’s mouth; it also drags out the process…longer period of uncertainty and an unstable support system for the child. On the flip side, if the courts cannot find someone to be the guardian, the children may be placed in foster care.

How to Prepare

Procrastinating on creating a will won’t prevent tragedy. All it does is set you and loved ones up for disaster in the small chance that something catastrophic happens. No matter how young you are, having a will is smart planning, especially if you have children.

Here are the key steps you can take to ensure that your children are cared for, even if you’re not around.

  1. Make an Estate Plan and Keep it Writing an estate plan isn’t a one and done deal. You’ll need to update your plan when things change (a new baby, divorce, new home, etc). Don’t let life outrun your plans.
  2. Select a Guardian. Choose someone who you trust with your kids and your money. Consider whether or not their core values align with your own. Before putting it into writing, talk to the person you pick and make sure they are on the same page.
  3. Consider a Revocable Living Trust to Manage Assets. Without a revocable living Trust, the guardrails around your assets come off when the child turns 18. With free reign at such a young age, they’re in danger of a major spending spree. Creating a trust that works with your will can ensure that your heirs don’t come into the money too soon.

Takeaways

Every parent wants to take care of their child. With a thoughtful estate plan, you can do this even after death. It’s not fun to think about, but preparing for the worst-case scenario is a small price to pay for peace of mind. Don’t put off your estate plan until your twilight years. Start now, and you’ll have an extra security blanket for your little ones, just in case.