Parenting

Who Should Get Your Kids If You Die? There's More To It Than You Think.

Parents and legal experts break down the factors to consider when designating a guardian in your will.

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Parenthood comes with many worries and fears. One that is particularly sobering is: “What if something happens to me or to both me and my partner? Who will take care of the kids?”

Grappling with the possibility of your untimely death is not pleasant, but it’s important to have a plan in writing to prepare for this worst-case scenario.

“Failure to legally appoint a guardian will result in a judge who you have never met deciding who amongst a pack of squabbling friends and relatives should be entrusted with the child or children,” New York estate planning attorney, Ann Margaret Carrozza, told HuffPost. “All 50 states allow guardians to be appointed in one’s will. I encourage people to engage in the process as early as possible.”

Grappling with the possibility of your untimely death is not pleasant, but it’s important to have a plan in writing to prepare for this worst-case scenario.
Grappling with the possibility of your untimely death is not pleasant, but it’s important to have a plan in writing to prepare for this worst-case scenario.

But how do you determine who this guardian will be? We asked two attorneys and the HuffPost Parents Facebook audience to break down the major factors to consider when planning.

Would The Kids Have To Be Uprooted?

Friends and family members may be spread all over the country, or even the world. This can create a challenge when deciding who would get physical custody of your children.

“I encourage parents of school-aged children to consider who is best able to keep the children in their current home, community and school,” said Carrozza. “In the wake of a devastating loss, familiar friends and surroundings can help a child.”

“I encourage parents of school-aged children to consider who is best able to keep the children in their current home, community and school. In the wake of a devastating loss, familiar friends and surroundings can help a child.”

- Ann Margaret Carrozza

Though it’s not always possible to keep your children in the same place, many parents make location a priority to offer some stability and normalcy. “I wouldn’t want the kids to be uprooted from where they live at the same time as losing their parents,” Colleen Freeman wrote in response to a callout on the HuffPost Parents Facebook page.

How Old Are They?

It’s worth thinking about the age of your chosen guardian(s) in relation to the age of your kids.

“Consider who would be able to best parent your child. If they have an active 65-year-old grandparent, that may be the best person now. But is that person going to be able to be an active 78-year-old trying to raise a teenager?” Laurie Giles, a Connecticut-based attorney and family mediator, told HuffPost.

“Our parents are older with health issues that made them not a good fit,” Ana Ramirez Lawson noted on the Facebook thread. “We ruled out grandparents, simply because children are a lot of work, and grandparents may or may not have another 18 years to raise another human,” said Brecken DeLaw, adding that she chose siblings, which ensures regular visits with the grandparents anyway.

Age, location and values are three major considerations. 
Age, location and values are three major considerations. 

Other parents worry about the emotional implications of choosing grandparents.

“We came to the conclusion that it would set the kids up for another major loss sooner than later, as grandparents are nearer to their life’s end than others would be,” wrote Elizabeth Miller Mills. “It will be hard enough for the kids to lose their grandparents, but if it also meant transitioning to another family, it could really traumatize them.”

Do Our Values Align?

A major concern for most parents is whether or not their children’s would-be guardians share their values.

Gina Costanza Sitte said she chose her sister because she is “the only person who would raise [my son] with the same values we have, who knows me and could share part of me with him, who is stable and able and an amazing mom herself.” Leah Eustace selected her parents for similar reasons: “They are the people whose values closest resemble our own and who would raise our children with the values and beliefs that are important to us.”

Carrozza advised parents to consider potential guardians’ religious propensities.

“You may not feel comfortable naming someone with very different beliefs from yours,” she explained, adding that you should also consider if their parenting styles are aligned with your own.

Are They Financially Responsible?

“Consideration should be given to whether someone is good with money,” said Carrozza. “If, for example, my sister is warm, nurturing, and fun but is a total disaster with money, I may want to name her as the guardian with whom my child lives. But I can then appoint another person as trustee of my child’s money.”

Giles said she has advised parents to give physical and financial custody of the children to different people. “Very often I suggest that you choose one person from each side of the family so that both families are still very much involved in the children’s lives,” she explained.

“If, for example, my sister is warm, nurturing, and fun but is a total disaster with money, I may want to name her as the guardian with whom my child lives. But I can then appoint another person as trustee of my child’s money.”

- Ann Margaret Carrozza

Parents should also think through their children’s future life stages and determine what their financial wishes are by asking questions like, “how much would I have wanted to pay for college or for a bar mitzvah?” They should discuss those wishes with the family or friends who will be stepping into the guardian role.

Even if your chosen guardian is financially responsible, they may not have the means to care for your children.

“The best person for the custody might not be someone in the best position financially,” said Giles. “So try to leave that person some mechanism by which they’ll be able to support your children in the same way they’re being raised now.”

As Ann DeLaiarro Sweck noted on Facebook, “I made sure I have enough life insurance to pay off my home, so my kids can have a place to stay, as well as have money to support them through college.”

What’s Their Relationship With The Children?

It’s best to choose guardians who have a good relationship with the children.

“My husband’s parent have barely any interaction with our son. They don’t seem at all interested in spending time with [HIM],” Katie De Leon wrote. “My parents would be the ones to ‘get’ our child. They very actively want to spend time with him, so... Any other way, I’d become a ghost and haunt the heck outta everyone!”

While these choices can lead to hurt feelings among family members, it’s best to just be open and honest so that people understand why and how you came to your decision.

“My parents would be the ones to ‘get’ our child ... Any other way, I’d become a ghost and haunt the heck outta everyone!”

- Katie De Leon

Giles also suggested parents think about discussing this matter with their children if they’re old enough to understand it. “Kids can be fearful thinking what if something happens to my parents ― especially in today’s society where they might see friends’ parents or neighbors dying young,” she said. “Have a conversation with your kids to let them know they’ll be OK.”

Of course, it’s very important to keep these conversations age-appropriate and full of reassurance.

Giles also advised parents to consider giving someone other than the future guardian power of attorney when it comes to medical decisions. “Imagine if the children are only 7 or 8,” she explained. “You don’t want the person who would be making the decision to terminate their parent’s life ― even if it’s fully in accordance with the parent’s wishes ― to be an aunt they’re very close with who may become their guardian.”

Do They Have To Be Family?

For many parents, it’s critical to ensure that a family member will get custody of their children. But this isn’t a requirement for everyone.

“The person who would best parent the child is not necessarily a relative,” said Giles. Several parents who responded to the Facebook callout expressed their reasons for choosing a non-relative.

“Family isn’t always blood,” wrote Ashley Robinett, adding that she chose her husband’s best friend and his wife because of their great parenting skills, loving nature and financial stability. A mother named Tracy Titus shared an emotional response explaining her decision to designate her best friend as her daughter’s would-be guardian.

“I have cancer so this is an everyday, or rather, every hour it seems, fear for me,” she wrote. “When it came to decide, it wasn’t about which ‘family member.’ It was about who would ‘mother’ her the most. Who would wrap her up and show her a mother’s love as close as possible to what I could? Who knows the real me and would tell her all the stories of the things that her crazy and wild Mommy would get herself into? Who could talk about me and know me enough to make my daughter ‘feel’ me, like I was still here?”

Your child's would-be guardian doesn't necessarily have to be a family member. 
Your child's would-be guardian doesn't necessarily have to be a family member. 

At least one parent noted that they specifically wanted to choose someone who was not a family member.

“Because both of our families would fight over who got the children, both my husband and I made the decision that our daughter and son’s godparents would be guardians,” said Elyse Marie Palleschi. “They would reside with my daughter’s godfather and his husband, and my son’s godfather would act as guardian ad litem for both children, making sure both families get visitation, that their finances are handled, and that all is going according to our wishes. We made this choice by sitting down and very carefully considering our options, and who would raise our children with the most love and least conflict.”

Are They Willing?

Obviously, it’s also important that the designated guardian is willing to take on this huge responsibility.

“You don’t necessarily want to choose your sister just because she was a great mom to her kids, who are now grown. She may be planning to move to Belize to live on the beach and may not want be a mom again,” said Giles. “The more conversations families can have around any life-altering issues, the better.

“Don’t let the perfect be the enemy of the good. If you have no ideal ‘A+’ candidate, then pick two ‘B+’ candidates to act together.”

- Ann Margaret Carrozza

Ultimately, the most important thing is to have a workable plan in place.

“Don’t let the perfect be the enemy of the good,” Carrozza said. “If you have no ideal ‘A+’ candidate, then pick two ‘B+’ candidates to act together.”

“I believe in protecting my child. Accidents can happen at any time, and having wishes in writing will protect the child as to who will they will live with, etc.,” wrote Katie McDermott Campbell. “I have seen children put in the situation where something happened to their parent(s) and it had to go through the court system while they were grieving. It’s absolutely heartbreaking.”

And know that it’s never too early to start the process. Carrozza and Giles noted that many of their clients have been expectant parents.

“Planning ahead is the only way to protect your family and your legacy,” said Giles. “Start having the conversation as soon as possible. No one wants to think about their own mortality but it’s something you have to deal with.”