Who takes care of my kids if I pass away?

Kids playing with marbles, photo by Tup Wanders (courtesy of Wikipedia)

Kids playing with marbles, photo by Tup Wanders (courtesy of Wikipedia)

Many people think about writing a will as something to put off for tomorrow, thinking that their kids are automatically going to get everything, and that’s that. But another aspect of a will that many people don’t consider is planning for who will step in to take care of your children if you pass away.

The reality in Illinois is that the children do not immediately get everything, should both parents pass away; they still have to go through the estate process, and if they are under 18, an estate must be created for them, and there is a possibility that two guardians will be appointed, one to take care of them personally, and another to take care of their estate until they turn 18. They also do not get an automatic guardian, and this person is appointed by the judge.

The immediate question that should arise is this: who will those guardians be? The child’s bed-ridden grandmother in Florida? My spouse’s crazy brother in Texas? DCFS or a non-profit orphanage? The bank where I have my checking account? Another attorney who happens to be in court that day? Anyone the child chooses?

The answer is that any one of these people is a potential candidate, as long as they are petitioning for the job. The court will decide if that person is “in the best interest of the minor.” 755 ILCS 5/11-8. Nowhere in the Illinois Probate Act is there an automatic preference for a candidate with a family relationship, close proximity, certain marital/income status, shared cultural/religious values, or any other factor, other than whomever the judge decides is in the child’s best interest under the statute.

Why take a chance that a random person will have the duty to raise your kids in your place, and/or to preserve all their inheritance until they turn 18? A simple clause in a will, followed by a proper signing ceremony that takes guardianship into account, can designate the people you wish to serve as guardian, not only for yourself, but for your kids as well.

DISCLAIMER: Please do not prepare your own documents / filings after reading this blog, without consulting an attorney first about your specific situation. I make no representations or guarantees here as to the applicability of any claim in your specific situation. This blog is ADVERTISING MATERIAL only, and should not be relied upon as legal advice, especially if you are not an Illinois resident. Please contact me if you have a legal question or concern, as no attorney-client agreement will exist between myself and any readers of this blog unless it is signed in writing.

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