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Guardianship of kids if you pass away - how do you set it up

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#1 Sabine75

Posted 05 January 2013 - 07:30 AM


Doing the will and all that stuff at the moment - realised the other day we hadnt done one for years  - but if we both pass away how do we ensure our kids are raised by the people we want them to be raised eg  - how do you write this is a will etc.  how does it become legal or will the state determine what they deem best fit?

Dont really want to speak to people before hand as it may upset others - so what have you done?  What an awful topic and hopefully totally unessecary.

many thanks

#2 MrsLexiK

Posted 05 January 2013 - 07:31 AM

You put it in your will but you need to know your will is only your wishes. If someone wants to contest the guardianship they can.

#3 lafonda

Posted 05 January 2013 - 07:40 AM

What do you do if there's no one you'd want to raise your child?

#4 BeakyHoneyButt

Posted 05 January 2013 - 07:43 AM

Wow, it never occurred to me that if i said i want xxx and xxx to have my children, that it was not a solid thing.

This is also something DH and i need to do. I Can't imagine discussing it with my family. I always fondly thought that i wouldn't  be here to see the sparks fly over who we chose to care for the children.

Edited by foxgirls, 05 January 2013 - 07:44 AM.

#5 Dionysus

Posted 05 January 2013 - 07:53 AM

We currently have my folks listed as preferred guardians.

We also have something in there that they have access to our estate (I've no idea, DH does all that stuff) so they can afford to raise our child.

We did this 3 years ago when DD was born.  Mum and Dad are now 60 and 62, but still in excellent health.  We will re-write soon though and list my brother and his wife.

We are fully aware that these are just are preferences.  MIL could have a case, I guess, if she wanted to contest against my parents - it could be a stand-off  LOL.  DH's sister wouldn't have a case against my brother.

My parents certainly know that they are currently listed as preferred guardians.  How could you not discuss it with the people you are going to nominate?

Iafonda - just don't die!   wink.gif

#6 Dionysus

Posted 05 January 2013 - 08:03 AM

QUOTE (Ferdinand @ 05/01/2013, 08:27 AM) <{POST_SNAPBACK}>
It will also help if your children have a solid relationship with the people you choose. They are unlikely to be made to move far from your family home so choosing people interstate or overseas lessens the likelihood of your wishes being fulfilled.

Yep, we live in the same suburb as my mum and dad and they look after DD 2 days per week, have picked her up from childcare, and take her to playgroup...
We live a couple suburbs away from my brother and regularly socialise with him and his family and they have babysat for us, and us for them

DH's family, on the other hand, live an hour away and we see them maybe only once every couple of months,

All those things would be considered, I imagine, when the courts (or whoever) decide who gets her

#7 MarigoldMadge

Posted 05 January 2013 - 08:08 AM

We have nominated my brother to be Maddy's guardian - interestingly, the solicitor who did our will advised against naming his wife in the will, which is something I would have done if I wrote it myself.

We nominated the same brother and my DH's sister to be joint financial trustees, to involve his side, and help my brother.

Really recommend seeing a solicitor - the whole process cost about $250, really thorough, etc. I have a family history of bad blood over wills/lack of wills, and wanted something that was clear, non-ambiguous, and in Maddy's best interests.

Also covered the scenerio of what happens if all three of us are killed - without a will, and assuming we all die instantly, everything we own would end up in my family as I'm the younger, and therefore assumed to have died last etc. We wrote that in this case, all assets would be pooled, split 50% to be distributed equally to his siblings and 50% to my siblings (but then you also have to cover that if a sibling is also dead, their share goes to their descendants...)  

Really, see a solicitor!

I also spoke to my parents about our guardian choice, and also asked my brother before nominating him, and to his credit, he took about a week to discuss it with his wife, they asked me questions about money, expectations re education, lifestyle, access to my DH's family etc, before they agreed.

#8 MrsLexiK

Posted 05 January 2013 - 08:09 AM

We've discussed two people (both our sisters) in what would be a joint thing and will discuss with them once bubba is here. I would feel horrible for leaving someone with all the "burden" so this way it can be spread over the people. At present my sister is not in a position to care for a child (especially one she takes on guardianship of) due to basically her age, but having said that in 10 years time my SIL's kids would all be totally grown and I know she would like to start travelling then - she couldn't really do that with my 9 yr old.

Our families get along ok so we feel this will probably work well and this child will be able to live with whoever is best at that time.

#9 Feral*Spikey*

Posted 05 January 2013 - 08:25 AM

My sister assumed her children's godparents would be their legal guardians if she and her DH died.  huh.gif  Not sure why she thought that any member of her family wouldn't fight tooth and nail to keep those children with us, if the worst happened.

We've specified who we would like in our will, and stated why. But they're also the 'logical' choice in any event.

#10 PubertyBlues

Posted 05 January 2013 - 08:36 AM

Our situation is a little different in that the kids are DH's from his first marriage but he is the primary custodian and has been for many years. Appreciating that these things could be contested, we do have it outlined in our will that in the event of his death, the children would remain living with me and that the relationship that we currently facilitate with their Mum and maternal extended family would continue.

We have discussed this with their Mum and she (in theory of course!) agrees. I also have legal guardianship over the kids on a day to day basis and make almost all of the decisions regarding their long term care in conjunction with DH, running those decisions past their Mum as and when appropriate.

DH's life insurance is slightly more than the norm to allow for any potential future expenses that could occur from me having to contest any other person's claim for guardianship of the kids.

In any event, the kids are teens now, and their expressed wish is that they would remain living with me as primary carer in the event of the death of DH or our divorce, so whilst we don't see either of those scenarios occurring between now and them reaching the age of majority, it is helpful that the have made those wishes known to their parents.

#11 Phascogale

Posted 05 January 2013 - 08:38 AM

What you need to do is speak to the people you want to look after your kids.  It really does help if they have a solid relationship with them (and it's likely they would if you want them to look after your kids).  Then if anything happens to you both then they need to take the kids there and then.

It normally takes time before a will is executed (not that you can 'will' kids but can let your intentions be known through your will).  And it can be months or longer.  If the kids are with a particular person then if everything is going okay then the kids normally stay with them because no one wants to uproot them again.

It can help if the kids are older and know what you have planned that they can say what they want ie if MIL wants to take them but you want your brother then the kids can say that they are going to their uncles and not with MIL - especially if they have a great relationship with their uncle and want to go there.

We also have life insurance so the cost of raising the kids is less of a burden for whoever takes them.  These things are all written into the will as in how much the people looking after them can use to facilitate having the kids in their care ie may need a new car to transport everybody or the house may need to be extended or need to buy a new house.

And this thread is timely.  It's something we need to consider again.  We've moved several hours from where we used to live so if we died tomorrow they'd likely go to the person we wanted them to go to (ie kids happy to move back) but that's going to be less of the case as they get more settled here.  There are some friends in mind.  Family aren't suitable.  My family can't take them (and they wouldn't go).  My husband's parents don't really want to look after little kids again (we don't want the kids to feel like a burden), plus they are getting older.  They are very close to 80 but surprisingly spritely for their age.

Edited by Phascogale, 05 January 2013 - 08:40 AM.

#12 Isolabella

Posted 05 January 2013 - 08:55 AM

Our only family within state is MIL who is in her 80's and struggles with a night with all three kids.

My family all live interstate or overseas.

My brother and SIL (overseas - I do believe they plan to return in three year time, but still return would be interstate) are our preferrred guardians. Everyone has been spoken with and agrees.

Kids have a great relationship with their os cousins and Facebook and Skype are great to keep in contact. Lots of travel too helps with the connection.

Edited by lsolaBella, 05 January 2013 - 08:56 AM.

#13 anasam

Posted 05 January 2013 - 09:49 AM

My understanding is that a Guardian is a person who is responsible for making important decisions on behalf of the child, they don't necessarily have to be the one who has custody. So for example if you make your MIL guardian she can then decide that is in the best interest of the child to live with XYZ relative. That is why it is important to discuss your wishes with your relatives. Also I agree with PP, for something this important it is best to speak to a solicitor.

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