There’s good news, though… Court involvement in the lives of your kids can be completely avoided.
The answer to this question depends upon which estate planning documents you and your spouse have.
If you don’t have a Will or a Trust in place that names a Guardian and Trustee for your children, then the important question of who will raise your kids will be left up to the courts. Whether you like it or not, the court will likely choose your nearest relative to step into the role of guardian and caregiver for your kids. For some, this is a good thing, but for others, the person chosen by the court might be the last person that you would want raising your kids. That’s why we recommend that, at the very least, you should have a Will that disposes of your assets and names a Guardian for your kids.
If you and your spouse have Wills that name a Guardian for your kids when you pass away, then the important decision of who will be appointed to raise them will not be left to the courts. In this instance the court will appoint the person that you have named as Guardian for your children in your Will (unless that person refuses or is unable to act as Guardian). While this situation is much better than leaving the decision of who will raise your children entirely in the hands of the courts, a Guardian appointed under a Will is typically left with little to no direction regarding howyou want your kids raised. Furthermore, until your kids turn 18 years old the courts will require a Guardian appointed under a Will to regularly explain how they are spending your assets on your kids. So, having a Will that names a Guardian for your children is immeasurably better than leaving that decision to the courts, but if you only have a Will appointing a Guardian, the courts will remain involved in your kid’s lives until they become adults.
There’s good news, though… Court involvement in the lives of your kids can be completely avoided. If you have a Will naming a Guardian for your kids anda Trust giving the Guardian control over your assets and direction regarding how to use those assets to raise your kids, then the courts won’t be involved in their lives at all. The reason for this is because the law considers all assets left in Trust to another person (including your kids) to be passed on outside of the probate court process. Another benefit of a Trust is that it allows you to give specific instructions to a Trustee (usually this is the same person as the Guardian) about how you want your children to be raised and how trust funds should be used. All of this is done completely free of court intervention and oversight.