Despite some minor variations in laws from one state to another, uniformity exists across the country in regard to procedures associated with establishing a guardianship for a minor child upon the death of her parents, according to the American Bar Association Section of Family Law as well as ABA's Section of Estate Law.
Last Will and Testament
The laws associated with establishing a guardianship for a child when parents die include provisions allowing for the recommendation of a guardianship in a last will and testament. Each parent designates the same guardian in a respective will. If the parents no longer are married, and if each selects a different guardian, the probate court sorts out the issue and makes a determination as to who will serve as the guardian.
Keep in mind that designating a guardian in a last will and testament does not represent the final word on the subject. The probate court presiding over the estate case arising from the will possesses ultimate authority to approve the guardian recommended by a parent in a last will and testament, according to "Wills, Trusts, and Probate Law" by Pamela S. Gibson.
Close Relative
Absent a designation of a guardian in a last will and testament, state laws take effect and govern the manner for establishing a guardianship for a child upon the death of his parents. The laws of all states that address this issue include a preference for a close relative as a potential guardian of a minor child upon the death of her parents. Examples of preferred close relatives include a grandparent, aunt or uncle.
Guardianship Proceeding
The mechanism established by law to create a guardianship in the absence of a directive in a will, of in the absence of a will, is a guardianship proceeding. In most states, a guardianship proceeding is brought in the probate court, according to "Guardianship, Conservatorship and the Law" by Margaret C. Jasper. Some states include a guardianship process for minor children in family court. The person desiring to be appointed guardian of a child upon the death of her parents--a grandparent, for example--files a petition in the court in the county where the child is located. The petition sets forth the relationship between the child and the person seeking a guardianship as well as facts supporting the request. A court typically orders temporary guardianship to a close relative, such as a grandparent, at the commencement of such a proceeding.
Legal Representation
Complex procedures exist associated with establishing a guardianship for a child in the aftermath of the death of his parents. Facing such a legally and emotionally challenging situation, electing to retain an experienced attorney can be a wise decision. The ABA maintains resources for people seeking legal representation, including contact information for state and local bar associations.
References
- "Wills, Trusts, and Probate Law"; Pamela S. Gibson; 2008
- American Bar Association: Section of Estate Law
- American Bar Association: Section of Family Law
- "Guardianship, Conservatorship and the Law"; Margaret C. Jasper; 2008
