What happens to my child if I die?

New parents look down at baby
What happens to my child if I die? | Honeycomb Moms | A few days after the birth of our son, my husband, Donzell Floyd, and I decided to do a photo shoot with him at our delivery hospital. Donzell usually says this is the only photo in which the baby looks more like me. | Credit: Mom365

I’m a typical new mom, so most of my days are spent worrying about my 1-year-old son.

I wonder what will happen if a car hits us on the interstate. I’m paranoid about the thought of someone breaking into our home, and God forbid my baby were to take a nasty fall down our stairs.

The worrying is endless, and the element of parenting I worry about the most is what happens to my child if I die.

Planning helps me ease the worry. So I tapped one of my favorite attorneys, Crystal Fenn, to answer my most pressing questions about estate planning.

Crystal and I went to the same Southside Chicago high school. And while I relocated to Atlanta for love, she  decided on the Peach State for law school.

Now a licensed attorney and mom, she works at a boutique real estate, estate planning and probate litigation firm here in Georgia.

She also runs a vlog and a blog in her spare time and lets me bother her with legal questions from time to time.

Our most recent Q&A on what happens to my child if I die:

Estate attorney smiles in office

What happens to my child if I die? | Honeycomb Moms | Crystal Fenn is a Georgia attorney and mom. | Credit: Crystallacefenn.com

Do you recommend couples make one joint will, or should each person do one separately? Why or why not?

It depends on the wishes of the couple. Joint wills are done typically with the understanding that if one spouse dies, the surviving spouse will inherit everything and when that spouse dies, the remainder of the estate will go to the children.

This sounds like a no-brainer at first, but there are some potential issues that may arise.  What if you wanted to set aside money for your grandchildren? What if the surviving spouse remarries? What if you wanted to give your child some of his inheritance early for a down payment on a home or to start a business?

It is best to discuss your wishes with your partner and your attorney so that she can best recommend how to proceed.

What happens if I detail a plan regarding a shared asset that my husband doesn’t agree with?

It is best that the couple comes to an agreement about their assets before meeting with their attorney. If you purposely leave an asset unmentioned in a will, depending on the language of the will it may default to a residual clause. This means whoever gets the remainder of the estate would get the asset. If there is no residual clause, the asset will be treated intestate and proceed through the courts to be divided up according to state laws. This can be costly and sort of defeat the purpose of having a will made in the first place.

Where do I include any wishes I have regarding the funeral?

Although you technically can put your funeral wishes in your will, it is best practice to have them in a separate form, final arrangements. This is because probate usually doesn’t start until after the funeral. Any wishes or instructions that you may have left in the will may not be found in time. Also, the will is where you dispose of property. By law, your body isn’t the property of the estate.

How do I stipulate specifics like wanting children to take ownership of a business when they are of a certain age?

Business succession planning, something I encourage every business owner to have, is a separate plan for how a business will proceed in the event of the death or incapacitation of the owner.

If we only have one child when we make a will but would like to plan for more, how do we handle that in the will?

Drafting a will with ambiguity or trying to make it inclusive of non existent persons can be problematic. You can amend your will as your family grows by adding a codicil, which is an addition.

Do wills have to be signed, or does an email to my closest family and friends suffice?

Each state has its own legal requirements on how to legally execute a will.

Should I include a power of attorney form with my will?

A power of attorney form is a standard estate planning document, and it can be executed at the same time as your will. It is prudent to plan for incapacitation, choose an agent and discuss your wishes with your agent beforehand in the event that incapacitation should happen.

Baby in green blanket

What happens to my child if I die? | Honeycomb Moms | A few days after the birth of our son, my husband, Donzell Floyd, and I decided to do a photo shoot with him at our delivery hospital. | Credit: Mom365

Do wills cover who gets our child, or is that a separate form?

You can name the preferred guardian of your child in the event of your death.

Keep in mind that the surviving parent will automatically get custody of the child unless the court has good reason to interfere.

If there is no surviving parent or if the court finds the surviving parent unfit, it will award guardianship to whom it sees fit.

This is not automatically the grandparents or aunts and uncles but rather who the court sees fit.

That means someone who doesn’t know you or your family will make this important decision on your behalf. That is why it is best to name a guardian and an alternate guardian (in the event that one is unable to perform) in your will.

I don’t plan on the people in my will becoming drug addicts or mentally impaired, but how do I handle that with language just in case?

This is actually a common concern. If you are concerned with a minor or adult child blowing through his inheritance or being taken advantage of, you may want to consider a trust. This will allow you to place stipulations and most importantly, appoint a trustee to oversee the distribution of the assets.

Can you point me to any reputable free templates for a will?

I can’t, and I promise this is not a biased answer. There are no two families alike, so there is no cookie cutter approach to counseling families. I think it is pivotal to have a licensed attorney listen to your needs to best ensure your wishes are documented as intended.

When should I use a trust?

There are many different types of trusts, each particular to a certain purpose. Generally speaking, a trust can be a solution for families with special needs members, high net worth or desires to leave assets in a structured manner for their children.

Should I hire an attorney? Why or why not?

Yes. I love a good deal just like the next person, but I don’t think legal services is one of those things you should skip on. My mentor told me that the very first probate case she litigated was a LegalZoom will. So with that said, discussing your wishes with an attorney can assure that you are correctly translating your wishes to paper.

About how much is normal to spend for an attorney handling estate planning for my family?

Estate planning typically starts around $400 and can go up in price depending on the complexity of the needs.

Georgians, if you have any more questions and would like to reach out to Crystal, find her online here.

New parents look down at baby pin

18 thoughts on “What happens to my child if I die?”

  1. Kimberly Bryant

    Thank you for the information, it was very helpful and informative. It’s tough planning for the future upon death or tragedy of a parent, however it’s needes.

  2. This is such an important issue and one most people avoid talking about let alone taking action on. We have our loving will and trust set up and am constantly encouraging friends to do the same, you have to have a plan.

  3. This is a very necessary evil. I have two kids [Age 7 & 14] and I think about this all the time. I donโ€™t want the state to decide what is best for my family.

  4. This is such an important subject, great interview here. I like her point about being specific as possible to fit your particular circumstances

  5. This post is greatly appreciated as few of people really handles these kinds of stuff. You are very prepared indeed and I applaud you for that.

  6. It’s one of the hardest things to think about, but this is important for anyone that has children. No one should let the state decide what’s best for their family.

  7. Yes, this is a topic that seems morbid to discuss, yet it’s so important! I remember when my parents had this discussion with my siblings and me, when my dad was diagnosed with lymphoma. We all learned about our parents’ wishes and their will, and what would happen when our mom also passed. My dad died in 2002, and then my mom in 2011 from lung cancer. Thanks to having everything planned out, and in writing, we were better able to carry out their wishes and deal with their estate.

    1. Blair villanueva

      It is okay to be prepared on anything. Insurance, wills, etc they are now necessity to avoid any issues when we are gone.

  8. Such an important question that many of us are too afraid to ask. I don’t have kids as yet, but there are stipulations in my will just in case I forget to get back to it.

  9. Oh my this post is such an eye opening. I’ve been quietly dealing with a lot of health issues that has me thinking about this now more than ever. My daughter is only 9. I actually told myself that I was going to do a living will this year so that there’s no question about what will happen to her if something was to happen to me.

  10. This is such an intense topic and I cannot imagine what a parent goes through when they welcome a newborn into their lives. I cannot understand this fully until I become a parent. But surely, this is a much needed topic to discuss and act upon

  11. Thanks for providing us with such thorough information to help keep our families prepared. After a rough year for my family, we’re working on rebuilding and anchoring the ship! The wills are high on our todo list.

  12. Admittedly, something I myself have been putting off too long. I will have to address it sooner or later. Being that I am Canadian though, different rules will apply.

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