What Happens to My Kids If I Die Without a Will in California?
If you're a parent of minor children in California, one of the most important estate planning questions you can ask is:
What happens to my kids if I die without a will?
The short answer is that your children will not simply be left without care, but if there is no surviving parent who can care for them and you haven't made your wishes clear, a California court may ultimately have to decide who will serve as their legal guardian.
That's a decision most parents would rather plan for themselves.
Who Gets My Kids If I Die Without a Will in California?
If one parent dies and the other parent is living and able to care for the children, the surviving parent's parental rights generally continue.
The bigger concern is what happens if both parents die, or there is no surviving parent who can legally care for the children.
In that situation, someone may need to petition the California court to be appointed as the child's legal guardian. The court considers the child's best interests when making guardianship decisions.
If you haven't left a valid guardian nomination, the court won't have your written choice to consider. That can leave family members trying to determine what you would have wanted, and, in some situations, more than one person may want to serve.
Can I Choose Who Will Raise My Children?
California law allows parents, under specified circumstances, to nominate a guardian for their minor children.
When we help parents create an estate plan, we generally don't stop with one guardian. We discuss naming a first choice and backup choices in case the first person cannot or does not want to serve when the time comes.
A parent's nomination does not completely eliminate the court's role. A judge still has authority over the appointment. However, documenting your wishes gives the court important information about who you wanted caring for your children.
What Happens to My Children's Inheritance?
This is where many parents don't realize there is a second issue.
The person who raises your children and the person who manages their inheritance do not necessarily have to be the same person.
California distinguishes between a guardian of the person, who is responsible for the child's care, and a guardian of the estate, who may be responsible for managing money or property belonging to the child.
Without proper planning, an inheritance left to a minor can require additional court involvement.
A properly drafted trust can provide a much more detailed plan. You can select a trustee to manage the inheritance and provide instructions for how the money should be used for your children while they are young.
You can also decide when and how your children eventually receive control of their inheritance, rather than simply leaving that question unanswered.
Parents Need More Than Just a Will
For parents, estate planning isn't only about deciding who receives your house, bank accounts, or other property.
A comprehensive estate plan should answer questions such as:
Who would you want to raise your children?
Who are your backup choices?
Who should manage your children's inheritance?
How should that money be used while they're growing up?
At what age or stages should your children receive their inheritance?
What happens if your first choices cannot serve?
These are decisions that are much easier to make before there is an emergency.
Estate Planning for Parents in California
At ARK Law, we view estate planning as more than creating a will or trust. The documents should work together as a system designed around your family, your assets, and your wishes.
For parents of minor children, that means creating a plan for both who will care for your children and how they will be financially supported if you're no longer there to do it yourself.
If you have minor children and don't have an estate plan, or if you created one years ago and your family circumstances have changed, this is an important part of your plan to review.
Your estate plan isn't just about what happens to your assets. For parents, it's also about what happens to the people who depend on you most.
This article is for general educational purposes only and is not legal advice. California guardianship and estate planning laws are fact specific, and the appropriate plan depends on each family's circumstances.
