Does a Will Cover Child Custody?

The addition of a child to the family is cause for celebration. As a parent, every part of your life changes – your world grows bigger, and your priorities shift. But along with the joy comes a profound sense of responsibility. You are committed to protecting this tiny, vulnerable person and their future, including making sure they would be cared for by the right people if something unexpected happened.

One question many parents have is whether their will can dictate who will take custody of their children. A will plays an essential role in expressing your wishes; however, it doesn’t control every aspect of child custody under California law. Understanding what a will can and cannot do can help you make more informed decisions for protecting your children’s future.

What a Will Can Do

A will allows you to name a guardian to take care of your minor children in the event of your death. For new parents, this is one of the most critical aspects of creating a will. There are two capacities in which a guardian may serve:

1. Guardian of the person: The responsibility for the child’s daily care, well-being, and upbringing
2. Guardian of the estate: Managing any inheritance left for the child.

You can name the same person for both roles or appoint different individuals for each one based on their strengths.

What a Will Cannot Do

Many parents are surprised to learn that naming a guardian in their will doesn’t automatically guarantee custody. The judge will give substantial weight to the parents’ wishes, but they must also evaluate what is in the child’s best interests. Therefore, they may reject the parents’ nomination if:

• The nominee has a criminal history or substance abuse problems
• There are credible allegations of past abuse or neglect
• The nominee is unable or unwilling to take on the responsibility of guardianship
• Another close relative petitions the court for guardianship, and they appear better suited for the role.

What if Only One Parent Dies?

If one parent dies, the child will stay with the surviving parent unless the judge finds them unfit. Even if you nominate someone else as guardian, the courts will not allow a will to override the surviving parent’s rights.

If both parents die, or the surviving parent can’t care for the child, the court will look to the will for guidance.

What if there is no Will?

About two-thirds of American adults don’t have a will. For parents with minor children, this creates a dilemma for California courts as they must determine guardianship with no guidance. This can result in family disputes as multiple relatives petition for custody. The worst part is the uncertainty it creates for the child who has lost their parents and is trying to process their emotions.

Beyond the Will

You want your wishes to carry as much weight as possible with the courts. In addition to naming a guardian in your will, consider writing a letter of explanation describing why you chose a particular guardian. You should also name a backup guardian in the event your first choice can’t fulfill the role. Creating a trust to manage your children’s inheritance helps ensure their financial security.

Our attorneys at Lonich Patton Ehrlich Policastri can help you draft a will, create a guardian plan, and set up a trust. We understand the importance of protecting your children’s future if something were to happen to you. 

Contact us for a free consultation by calling 408-553-0801. By working with us, you will have peace of mind and the assurance that your wishes are legally sound.

 

Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.