What Happens To Your Children If You Die Without Naming A Guardian?

As a parent, providing for your children's well-being is your single most important task. Nothing else matters as much as ensuring that your children are protected, supported, cared for, and nurtured. Unfortunately, life is unpredictable - you may not always be around to take care of your children. While we hope you live a long life and are able to see your children well into adulthood, it is important to take steps to protect them in the event that something unexpected should happen to you.


Naming A Guardian

No matter your age, our Lake of the Ozarks estate planning attorneys strongly encourage you to establish at least a simple estate plan as soon as you become a parent. By establishing a will, you can officially identify the person you want to care for your children in the event that you die, become incapacitated, or become otherwise unable to fulfill your parental responsibilities. 

Choosing a guardian for your children is an important task, and one that should not be taken lightly. There are multiple factors that must be considered as you make your decision. Ideally, the person you choose will be someone your children know and trust, someone who will support your children's continued relationships with their other extended family members, and someone who will raise your children in accordance with your deep-rooted values.

What Happens If You Die Without Naming A Guardian?

Children under the age of 18 generally require a legal guardian to care for them. Sometimes, parents pass away before they have the opportunity to legally designate a guardian. If only one parent passes away, custody is typically transferred to the surviving parent automatically. Challenges arise when both parents pass away without having legally designated a guardian to care for their children in their stead.

If there is no will designating a replacement guardian, it will be up to the judge to determine who shall fulfill the responsibility. Any and all friends and family members (regardless of your feelings towards them) may nominate themselves to take on the responsibility. Once the judge has identified the individuals willing to fill the role, he will decide who to appoint based on the evidence each applicant presents. Depending on how strongly each applicant feels about the matter, a tense custody battle may ensue.

The judge will look at the facts of the situation and will make a decision based on who he believe will be able to provide for the children's best interests. Because the judge does not know your family personally, it is possible that he will not make the same decision that you would have.

Contact Us To Establish A Will

In order to ensure your children will be left in capable hands (that you feel comfortable with), it is important to include guardian designations in a will to protect them. You have the right to appoint anyone you wish to be your children's guardian, but grandparents, aunts and uncles, older siblings, and close family friends are most common choices.

Regardless of whom you choose, it is important to ensure your wishes will be met by legally documenting them. The estate planning attorneys at the Law Offices of Phillips, McElyea, Carpenter, & Welch, P.C. have experience drafting wills and would be honored to help you protect your children by drafting one for your family. Call us at 573-346-7231 to schedule your initial consultation.


Law Offices of Phillips, McElyea, Carpenter, & Welch, P.C.
The choice of a lawyer is an important decision and should not be based solely on advertising. When you need a knowledgeable attorney, we invite you to contact us to set up a consultation. Evening and weekend appointments are available. We have access to interpreters.

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85 Court Circle N.W., P.O. Box 559
Camdenton, MO 65020   GET A MAP
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