Over the last decade, the number of adults in the United States who pass away without creating a will has actually increased. Only approximately 14% of adults in their 30s have a will and an estimated 42% of adults over the age of 65 do not have a will. Failing to create a will makes handling an estate much more complicated for your heirs, but when minor children are left behind, the situation can quickly deteriorate into a nightmare.

When music legend Michael Jackson passed away, it was initially believed that the singer left no will, leading to his mother, Katherine, filing documents to establish custody over the singer’s three minor children. Even after a will was discovered, the Jackson family was involved in multiple legal fights as different family members fought for custody of the children. Had no will been discovered, the struggle could have been prolonged, and the situation serves an example of the consequences of failing to appoint a guardian for minor children.

 The Court Decides

The first major consequence of dying without a will in place is that the court makes decisions regarding your estate in accordance with state laws. Instead of you or your loved ones doing what is believed to be best for everyone involved, the court will have the final say in all decisions.  When custody is one of the issues in question, the court will focus on upholding the law while protecting the best interests of the child as interpreted by the presiding judge.

 Custody Battles

In some cases, families who are close to each other emotionally and physically can work together regarding the raising of orphaned children  This means that regardless of whom the court appoints to have legal and physical guardianship of the children, all family members will continue to be involved in the children’s lives. Unfortunately, there are other situations that occur when different family members want custody of minor children and are willing to fight for the right to raise those children alone. Your children could find themselves in the middle of a lengthy custody battle that robs them of security and comfort when they need both the most solely because you failed to name a guardian.

 Places Family in a Compromising Position

There are times when the person who is legally entitled to assume custody of your children when no guardian is appointed in a will is not prepared for the task. Elderly or infirm family members who suddenly find themselves responsible for two or three minor children may not feel qualified to care for them, but refusing the responsibility could place your children in a precarious position. Creating a will that names guardians who you have consulted prior to leaving them custody of your children helps to avoid this serious problem.

 Discuss Your Options

Creating a thorough will is the best way to protect your children and secure their future assets.  Discussing your options with a qualified estate and trust attorney can ensure that your estate plan is valid and made with the best interest of your family in mind. MMZ Law is ready to help you get started, so contact our Claremont, California office today and schedule a consultation.

*We service Elder Law through Medi-Cal Asset Protection Planning



341 W. 1st St. Suite 100
Claremont, CA 91711

MARIVEL M. ZIALCITA is the founder of MMZ LAW, A Professional Corporation, where she practices in the areas of Elder Law – Medi-Cal Planning Asset Protection, Trust & Estate, Special Needs, Conservatorship, Trust Administration, & Probate. Ms. Zialcita is a frequent speaker on trust and estate matters and holds memberships in the State Bar of California, Trust and Estate Section, The San Bernardino County Bar Association, Wealth Counsel and Elder Counsel. She currently assists in the pro bono legal services program at the James L. Brulte Senior Center in Rancho Cucamonga, California. She is based in Claremont but assists clients throughout Southern California.

This information is educational information only and not legal advice.