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Cary, NC Estate Planning Lawyer
The most common concern for parents of young children is the question of what will happen to the kids if something happens to the parents – for good reason. The answer to that question is going to depend on whether the parents appointed a guardian in their will or not.
If you were proactive and planned ahead, you designed a guardian for your minor child(ren) in your will. In North Carolina, the Clerk of Court in the county of your residence will have jurisdiction over the appointment of a legal guardian for your kids if you pass away, but the Clerk is required to defer to the parent’s(s’) selection of guardian unless their selection is legally unqualified or unfit to be a guardian in the Clerk’s determination. Common disqualifiers will be a felony record or evidence of drug use.
Your guardian will petition the Clerk to appointed the legal guardian of your child(ren) and will submit your will as evidence of their designation and your wishes. The Clerk will likely name the person the legal guardian of the child(ren) and they turn 18. The guardian will have to ability to make all legal decisions – healthcare and education included – for the child(ren) until that time. This is the best-case scenario.
If you were not proactive and had no plan in place, the Clerk will be allowed to select a guardian that they believe will be in the best interest of the child(ren). The Clerk has no context on your kids’ needs or your family dynamic, or how poor of a guardian some of your relatives would be. The worst-case scenario would be full-blown custody litigation between adverse relatives. Crazy Uncle Larry could end up being selected – even though he would’ve been your last choice, if at all. The Clerk would have no background to judge people differently, except for the facts that the Clerk is presented with. Some people will present much better in court than they do generally day-to-day.
It’s best to get this planning sorted out well ahead of time to save your family and your kids the burden of going through the court process without direction. Get your will together, and your kids will go with the best people for them.