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WHY DON’T PARENTS WITH MINOR CHILDREN HAVE A WILL?

When parents with young children are asked why they don’t have a Last Will & Testament, the most common responses are:

  • I won’t die anytime soon,
  • I don’t have any money to leave to anyone,
  • It is too expensive, and
  • It will all work out.

Unfortunately, failing to name a guardian for minor children in a Will may have long lasting and tragic repercussions for the children and could result in protracted and expensive guardianship contests that are not easily forgotten or forgiven.

If a Guardian for Minor Children is Named in a Will, then:

  • Under Idaho law the named guardian is given priority over anyone else unless the child (if over the age of 14 years) objects to the appointment, or the named guardian fails to accept the appointment.

If a Will Does Not Name a Guardian, then:

  • If there are two biological or adoptive parents actively raising the child and one of the parents survives, then the surviving parent remains the legal guardian of the child.
  • If the other biological parent was never married to the deceased custodial parent or has not maintained a normal parental relationship with the child (including providing support and maintaining regular contact), then an Idaho court may find that the child was abandoned and that the surviving parent’s rights are (or were) terminated.  Upon such a finding, the court will decide who the guardian is.  
  • If the surviving spouse or partner is neither the biological or adoptive parent of the child, then an Idaho court will determine who the guardian should be.
  • In households where the children have different fathers, the children may be split up among the various fathers and/or foster homes
  • If the other parent is deceased or his/her parental rights have been (or are deemed) terminated, then, the court will choose the guardian. Idaho Code §15-5-204 states that the “court shall consider the best interests of the child as the primary factor in the determination whether to appoint, and whom to appoint, as a guardian for such child”.

Failure to Name a Guardian in a Will may:

  • Result in a person raising the child that the parent would not have chosen.  The parents’ and the judge's views as to what is best for the child may be very different.  The judge may not view the parents’ lifestyle or religious choices as the "best" choice for the child.  The judge may favor an applicant for guardianship as the better choice for economic reasons when the parent would have chosen the less economically stable applicant because the parent believes he or she would provide a more loving home to the child.  The judge may also favor a complete stranger over all of the parent's relatives and friends.
  • Open the door to potentially protracted and expensive guardianship contests.  Case law is replete with examples of a minor’s grandparents, aunts and uncles battling each other, and the deceased person’s friends battling the deceased person’s family.  If the parent would have preferred a close friend or non-marital or non-adoptive parent as the guardian, but fails to name him or her in a Will, then they may have little or no leverage in obtaining guardianship if a family member also seeks guardianship.  Such guardianship contests also can cause irrevocable breaches in family relationships and long lasting damage to the children.

Leaving it to the court to decide means that the parent has relinquished all control over who will raise his or her children and what lifestyle and opportunities they will be exposed to.  Children are fragile, especially after the death of a parent.  Guardianship contests can damage children.  Being placed in a new family that is not loving and supportive can damage children.  Being separated from siblings can damage children.  There are numerous ways in which a child’s life can take a turn for the worse.  

So should parents of minor children leave it to the courts to decide who will raise their children or should they execute a Will and choose a guardian they know is best for their children?

  IMPORTANT NOTICE

The foregoing is NOT legal advice.  We have prepared these materials to inform and educate.  They are not, and should not be considered, legal opinions or advice to anyone, nor do they create an attorney client relationship by your reading them.  These materials may not reflect the most current legal developments in the applicable area of law.  Furthermore, this information should in no way be taken as an indication of future results.

 In order to comply with the requirements of IRS Circular 230, we must inform you that any tax advise contained herein, including any attachments hereto, are not intended or written so as to be used and indeed, may not be used, by any person, including the recipient(s) and other persons who receive or read this discussion and/or any attachment hereto, for the purpose of (1) avoiding any penalty that may be imposed by the Internal Revenue Code or Internal Revenue Service or (ii) promoting, marketing or recommending to any party any tax-related matter or idea contained herein. 

  ©  Mathieu, Ranum & Allaire, PLLC. 2014

 

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