What Happens to a Child if Both Parents Die?

One of the most difficult things for parents to think about is what would happen to their minor child if both parents were to pass away. It’s an emotional topic but also a critical one to address in your estate plan. Under North Carolina law, if both parents die without naming a guardian, the court will appoint one based on the best interest of the child.

Naming a Guardian in Your Will

The best way to ensure your child is cared for by someone you trust is to name a guardian in your will. When creating a will, parents must designate a guardian to take custody of their child and manage their assets (via a guardianship of the estate) until the child reaches age 18. Common choices for guardians include close family members like grandparents, aunts, uncles, or adult siblings, as well as trusted friends.

When selecting a potential guardian, consider things like:

• Their values and parenting style
• Their age and health
• The stability of their home environment
• Their willingness to take on the responsibility
• Their relationship with your children
• Their financial stability and ability to provide for your child
• Whether they live nearby or would be willing to relocate
• Religious and cultural factors that are important to your family

It’s also wise to name an alternate guardian in case your first choice is unable or unwilling to serve. Once you’ve made your decision, discuss it with the potential guardian to ensure they are on board. You may also want to leave them a letter of instruction with your hopes for your child’s upbringing.

Legal Requirements for Naming a Guardian

For your choice of guardian to be legally valid, you must name them in a properly executed will. In North Carolina, this means:

• The will must be in writing
• It must be signed by the person making the will (the testator)
• Two witnesses must sign the will in the presence of the testator and each other

Having the will signed before a notary (making it “self-proving”) is not required in North Carolina but is recommended, as it helps the will move through probate more efficiently. Once the will is properly executed, copies should be given to the named guardian, the alternate, and your child’s other caregivers.

What if There is No Will?

If both parents die without a will naming a guardian, North Carolina intestate law will govern what happens to the child. Any interested party, such as a family member or family friend, may file a petition with the court seeking custody. The court will then consider several factors to determine the best interest of the child, including:

• The child’s current living arrangements
• Each petitioner’s ability to provide proper care
• The child’s relationships with the petitioners
• The wishes of a child over age 12
• Any history of domestic violence or substance abuse by the petitioners
• The mental and physical health of the petitioners

While grandparents and other relatives will likely be given preference, the court has the discretion to grant custody to another party if deemed in the child’s best interests. The process can be lengthy, and the outcome uncertain, so naming a guardian in advance is always preferable.

Guardianship of the Estate

In addition to physical custody, guardianship also involves managing assets left to the child. If both parents die without a will or other estate planning, the court will appoint a “guardian of the estate” to oversee the child’s inherited property until they turn 18. This role comes with significant responsibilities, including:

• Managing the child’s assets prudently and avoiding unnecessary risk
• Keeping the child’s property separate from their own
• Using the child’s funds only for their benefit
• Obtaining court approval for major transactions
• Providing detailed annual accountings to the court

If the person appointed as guardian of the estate lacks financial expertise, they can retain professional advisors to assist them. However, they are ultimately liable for all decisions made regarding the child’s assets. Given the strict oversight and fiduciary obligations involved, some appointed guardians may choose to resign from this role.

Alternatives to the guardianship of the estate include:

• Establishing a trust to hold and manage the child’s inheritance according to your wishes. You can name a trustee with financial experience and provide detailed instructions for the care of your child.
  • Consider appointing a professional third-party trustee to provide objective oversight and experienced financial management, ensuring your child’s inheritance is handled with expertise and impartiality.
• Utilizing a Uniform Transfers to Minors Act (UTMA) account that automatically transfers to the child at a designated age between 18-25.
• Purchasing a life insurance policy that pays into a trust for your child’s benefit.

Our estate planning attorneys can advise you on the best options for your family’s needs and help you put the necessary documents in place.

Establishing Paternity for Children Born to Unmarried Parents

If a child’s parents were not married when the child was born or conceived, paternity must be legally established for the father’s family to have custody or visitation rights. Under North Carolina law, paternity can be established by:

• The father executing an Affidavit of Parentage
• The child’s parents marrying after the child’s birth
• A court order establishing paternity

Without legally established paternity, the child has no right of inheritance from the father, and the father’s family cannot seek custody if both parents die. If a father dies before paternity is established, the child’s mother or another interested party can file a petition asking the court to determine paternity posthumously. This requires clear and convincing evidence such as:

• DNA test results showing at least a 97% probability of paternity
• The father’s acknowledgment of paternity in a sworn statement
• The child’s birth certificate with the father’s name
• Evidence that the father acted as a parent to the child and held himself out as the father

If paternity is established by court order after the father’s death, the child will gain the right to inherit from the father’s estate and the father’s family can seek custody or visitation. However, this process can be lengthy and complex, so it is best for fathers to establish paternity during their lifetime.

The Importance of Planning Ahead

No parent wants to imagine leaving their child parentless, but it’s crucial to have a plan in place for that worst-case scenario. Naming a guardian in your will gives you control over who will raise your child if you cannot. It also helps avoid custody disputes between family members and uncertainty for your child during an already difficult time.

At Cary Estate Planning, we understand the weight of these decisions and are here to support you through the process. Our attorneys will take the time to understand your family’s unique needs and help you craft a personalized plan. Contact us today to schedule your Discovery Call and gain the peace of mind that comes with knowing your child’s future is secure.