For the average person, passing away before reaching an advanced age is unthinkable. A CBS News poll found that most adults try not to think about their death at all. This trend leads to numerous problem when those with minor children pass away before creating an estate plan that provides instructions regarding who they want to care for the children they leave behind. While adults obsess over royal births and celebrity baby news, few give much thought to what happens to children whose parents are unable to raise them. Learning what happens if you die without naming a guardian for your children may encourage you to spend more time preparing for the eventuality of passing away unexpectedly.

Temporary Guardian

In the immediate aftermath of losing both parents a child is placed with a temporary guardian.  Family is the first choice when it comes to temporary care, but there are times when family cannot be immediately found. If extended family lives out of state, there is no contact information available for distant relatives, or the family members have no interest in caring for the orphaned child, foster care may become the court’s only feasible option. In some cases, foster care is just a temporary solution until relatives can be located and contacted.

Court Involvement

When there is no estate plan giving explicit instructions, even when a relative is located, court involvement is usually unavoidable. Legal custody must be established in order for an adult to fully take on the care of a minor child. Basic tasks such as obtaining medical insurance, enrolling a child in school, or acquiring a child’s inherited property is nearly impossible if you are unable to prove that you are the legal guardian of the child. The state court will work with relatives or foster care to make sure the child is properly placed.

No Choice

Once the court becomes involved, a stranger will have final say regarding who your children are placed with. This means verbal agreements, family preferences, and other personal bonds are often disregarded. The court representative will choose who they believe is most suitable to care for your children. Instead of your children going to live with an aunt they are close to or a grandfather they have a healthy relationship with, the court may place them with another relative whom they feel is better suited to provide long-term care.

Talk to an Attorney

The idea of passing away before your children are grown is painful, but planning for the eventuality is something that all parents must do. To protect your children and ensure they are kept safe until they reach adulthood, you should work with a qualified estate planning lawyer.  The attorneys at MMZ Law understand how crucial it is to make the right plans for your children’s well-being. We work with you to create an estate plan to reflects your desires and protects the rights of your children. Contact us today to schedule a consultation in our Claremont, California office so that we can begin discussing your estate planning needs.



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.