Can I Leave My Minor Child To Someone In My Will?

Who will Take Care of My Children?

Who will take care of your minor child(ren) if both parents die?  I have been asked recently about what will happen to the children if they die prematurely.  Many people believe you can leave a child to someone in their will.  A child is not like your fine china; you can’t just give it anyone you choose.

However, you can appoint a guardian of your children in your will.  Virginia law allows every parent by will to appoint a guardian of his or her minor child and also appoint a guardian of any portion of the estate that was bequeathed to the child.  VA Code § 64.2-1701.  One point to consider when financial assets are involved is the appointed guardian of your child’s person may not be the best person to manage the financial affairs of the child.  In many situations, naming a separate person as trustee of your child’s financial assets is a more prudent decision (A complete discussion of the management of the financial assets left to your minor child is beyond the scope of this blog post).

A court will appoint the person named in the parent’s will unless the other parent is still alive and is fit to have custody or the appointment would not be in the best interests of the child.  A guardian may only be named in a valid will.  Therefore, you cannot name a guardian for your child’s person in a power or attorney, trust or other estate planning document.  No other document can be used to name a testamentary guardian for the minor child.

Things to Consider When Choosing a Guardian

  1. Does the person have the physical and financial ability to care for the child?
  2. Where does the person live?  Would the child have to move?
  3. Is the person going to follow your wishes of how to raise the child?
  4. Does your child currently have a relationship with that person?  How does your child interact with that person?
  5. What is the person’s relationship with the rest of your family?  Will they continue to see the child?

What happens if the Parents are Divorced or Separated? 

If the parents are separated or divorced and one parent dies, under Virginia law the surviving parent will normally receive full custody of the child.  Even if the deceased parent had primary custody of the child, the surviving parent will usually receive custody upon the death of the other parent.  However, if a court finds the surviving parent to be unfit, then a third party may be granted custody.

If you find yourself worrying about your ex’s ability to care for the child, you need to plan ahead.  You should speak to your family members and make sure they are willing and able to petition for custody in the event of your untimely death.  Additionally, if you fail to name a trustee or guardian of the property left to your child, then the surviving parent will often be appointed to manage and control the money left to your child.

Finally, if you are separated or divorced you need a will!  If you, die without a will, are remarried, and have children from a prior marriage, your untimely death could have a major financial impact on your surviving spouse.  Under Virginia law, your children from the prior marriage would take 2/3 of your estate and your surviving spouse would only receive 1/3. Without a will, you could unwilling set your spouse up for financial disaster.

Wills aren’t just for the elderly.  Everyone should have a will and you should review and update as circumstances change.  The attorneys at paul | perdue attorneys can help you with a will and estate planning needs in Chesterfield, Colonial Heights, Dinwiddie, Henrico, Hopewell, Petersburg, Prince George, Richmond or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.