Dying Without a Will – Who Will Be Guardian Of Your Minor Children?

Many people believe that if dying without a will their property and their children will go to the State of Maryland.

In Maryland we have what are called “intestacy laws” which come into play when an individual dies without a will. These laws define who becomes guardian over the minor children and define a sequence of who is entitled to the disposition of your property. Also, who will manage the estate during this process (which is called probate) and who is eligible to become the personal representative (often referred to as the executor) is set forth in the Annotated Code of Maryland.

Two important reasons for having a will are to be sure your property goes to the people you intend to receive it and to protect your minor children from certain relatives who may come forward and seek guardianship of them. Their motivation may be to receive and control the funds for their own benefit that the court would provide to your children. Also, you may believe that one side of your family is more capable to be guardian of your minor child or children and to do what is in their best interests. Without a will, a family member whom you consider not able to provide what is in the best interest of your children may be designated as guardian mainly because they have greater financial resources to win the case. Thereby the person or persons you wanted to have guardianship because they would act in the best interests of your children may not become the guardian.

Here is an example of what I mean. Your passing occurs and you have no spouse or there is either no surviving parent of your child or there is a surviving parent whom you consider unfit to have full custody of your child. Add to this that you do not have a will that specifies who you want as guardian of your minor child/children. The Court therefore determines who will be designated as guardian of your children, in part, based on the qualifications of the party coming forward and, in part, based on who will act in the best interests of your children.

Another example is that you have $100,000 in group life insurance from your job and you have designated on that insurance policy that your minor child is the beneficiary. That means that until your child reaches age 18 the proceeds of that insurance policy must be held by a court designated guardian for the benefit of your minor child or children. Again, a guardianship proceeding must occur to obtain the proceeds of your life insurance.

One very practical way of having greater protection for your children is having a will that includes a testamentary trust. A testamentary trust occurs when a trust is made part of your will. You have your attorney prepare your will, designating your children as the beneficiary of all your assets in a testamentary trust within the will. Your assets include life insurance policies and the proceeds of the life insurance. Therefore, in your life insurance policy, you need to designate the beneficiary of the proceeds as the trustee for the benefit of your children under your last will and testament. Special wording is necessary.

Fred Antenberg is a Maryland attorney who has many years’ experience preparing last wills and testaments which include testamentary trusts for his clients in Howard County and surrounding counties in Central Maryland. Call Fred today for a free initial consultation at 410-730-4404.