Wills and Child Custody

Creating a Will for Custody of a Child/Children

Pen and paperDivorce and separation are a tumultuous and chaotic time. During these times of large adjustments, it is natural for the parties involved to be focused on the immediate issues of reorganizing their households and their lives. With that sort of focus, it is easy to ignore issues that may not be pressing for years to come, such as estate planning and redrafting wills. If you have children, however, then making plans for the future during your divorce is even more important.

Assigning Custody in a Will

It is not uncommon for parents to want to name a particular guardian in their wills. Parents are completely free to name a preferred guardian or custodian, but parents should understand that courts will not be bound by the person named in the parent’s will, especially where there is still a surviving parent.¬†For example, a mother cannot use a will to name her mother as the preferred guardian for the child as a way to override the father’s parental rights.

That is not to say that a parent cannot name a preferred custodian in his or her will. A court may look at that as evidence in certain circumstances, but it will not be the only evidence in determining where the child will be placed in the event of the death of only one of the parents.

Wills & Child Inheritance

A will can also be used to make sure that a child is protected financially after a divorce or custody case. A parent can use a will and other estate planning tools to direct how his or her assets should be used to benefit the child following the parent’s death. The will and other estate documents can be used, for example, to establish a trust to fund the child’s education.

Many times, divorced or separate parents do not want the former spouse to be the one controlling all of the money, so the will and estate documents can be used to name another person who would be in charge of administering and distributing the funds. Parents should be aware that, often times, they will be required to carry life insurance for a particular amount while the child is under the age of majority. This passes outside of the will and the court may require that the other parent be named as the beneficiary of the policy.

Estate planning, wills, and child custody all interact in complicated ways. We have extensive experience helping clients with these issues. Contact us today at 651-371-9117 to discuss your child and how to plan for the future.

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