This question is for a story I’m writing, so I don’t need answers fast
In a nutshell: my story the protagonist is a woman in her thirties who hasn’t seen her father since her parents got divorced when she was 14. He remarried 10 years earlier than the story’s current day, and he and his wife had six kids…none of whom the protagonist knew anything about before her father and stepmother died of Covid and their will nominated the protagonist guardian of her younger siblings for reasons I won’t go into now. Covid’s impact on her employment has left the protagonist on the verge of needing to move back in with her mom, so she quickly decides to take on care of these unexpected siblings, who come with their newly deceased parents’ nice house for them to all live in.
So, what actually happens when both parents die in the hospital after an acute illness like this or an accident and before they die they’re able to tell someone that there’s a will? I assume it’s far more complicated than in Baby Boom where someone just showed up at the airport and handed the new guardian the baby…
Who handles informing the intended guardian that they’ve been named guardian in someone’s will? And how long does that take?
What happens to the kid or kids until they’re handed over to their new parent? Temporary foster care if there’s no handy family member to immediately give them to for the short-term? (I’d like for the couple to have been dead at least a couple of days before the protagonist is located, so she’s definitely not taking them the night her Dad dies even if custody could be established that fast, and the kids don’t have any other family.) If so, would foster care collect them from school or a neighbor’s house if the hospital informs them of the parents’ deaths?
If they were at a neighbor’s and the neighbor was willing, could they keep them a couple of days instead?
Who actually brings the kids to their new guardian for the transfer of custody? A lawyer or a social worker?
FTR the story is set in New Hampshire and both the dead parents and the protagonist live there, if laws in the US vary
Wills don’t name guardians; family courts do. Essentially, the wills just express a preference for who the parents want to be the guardian of their children. If the would-be guardian is unfit or refuses to serve, the family court will pick someone else. The court will seeking to identify the custody arrangement that is in the best interest of the children. Ordinarily, it will be the next closest relative. For this reason, it’s possible that the half-sister might just be the person the court seeks out as permanent custodian if the kids have no other living relatives. But the permanent custodian could be another family member or someone else (like even the neighbors in your story) who agrees to take custody, or the kids could be put into the foster care system and assigned out to some random foster parent until permanent custody is determined.
Also, in addition to the house, the kids would likely inherit the parents’ other assets too. If the kids are under the age a majority, most (maybe all) states will put each the assets that each kid inherits into a separate trust for their benefit. Their guardian can use some of the money from the to help raise the kids, subject to limits specified in the trust (which will be specified by the statute unless the parents created the trust with different terms) and the agreement of the trustee. The remainder of the assets, if any, would go to each kid when they reach the age of majority (generally 21, I think).
Who will bring the kids to the permanent custodian? The family court will want to know that the guardian is fit, so the person is almost definitely going to have to appear in court before the judge before being named permanent guardian. The kids might go home from that hearing with the new guardian or the court might order whoever is temporarily watching the kids to turn the kids over the permanent guardian at some point in the future (next day, end of the week, whatever). You are right that the kids aren’t going to just show up on the new permanent guardian’s doorstep with no prior introduction.
Emergency custody decisions are rendered really quickly, Like, perhaps the next day or a few days later. In this case, a helpful neighbor might be named a temporary custodian, particularly if the kids are old enough to weigh in on the decision and this is what they want.
Permanent custody decisions can take longer, particularly if different people are seeking permanent custody (e.g., both sets of grandparents). If family members are fighting for custody with non-family members, the default is for the children to go to the next closest relation who wants them.
Does the family court generally follow the will? For example we’d like to leave Wee Weasel to the care of my SIL should anything happen, and she has agreed. Is the judge then likely to approve this? What if someone else thinks they should be the guardian? Is the will considered in making that decision?
Is it the same for temporary guardianship? We were thinking, “Wee Weasel can stay with grandpa until such time as auntie can pick him up.” Is that something we can put in a will that would be likely to be followed?
Again, this is outside my area of expertise so you should talk to a lawyer. IMHO, unless your SIL is an axe murderer or habitual drug user, then the court is likely to approve her as custodian. It only really becomes an issue if, let’s say brother-in-law and his wife want custody, are equally close in relation, and goes to court to say that SIL is an unfit parent because she squeezes puppies for their juice.
Your lawyer can also tell you whether to name a temporary guardian. Frankly, I haven’t seen anyone name a temporary guardian but again, this isn’t my area.
I remember when my wife’s brother and we both had underage children. Both couples had agreed to take in the others’ children if necessary. We also both agreed the first thing to do was to go to the other state and pick up those children and return home. We figured we would then have “home-field advantage” if something was contested.
I have no idea if that was actually relevant, but we were reacting to some horror stories we’d heard.
Back in 1999, a couple with whom we were close friends had a baby girl. My wife and I served as their daughter’s godparents (as did one of the father’s siblings and one of the mother’s siblings).
When their daughter was about a year old, our friends asked us if we would be willing to agree to raise their daughter, should something happen to both of them. They did anticipate it would be a somewhat fraught situation if it ever came up, as both of their families would likely argue that one of them should raise her, but our friends said that their will would specify us as the preferred guardians, as, frankly, they trusted us more, and they wanted to make sure that their daughter was raised with an appreciation for nerd culture and science (which they didn’t believe that their families would do).
Thankfully, it never came up; our friends are still alive, and our goddaughter is now 21, and in the Air Force.
My sister-in-law (SIL1, the mother) had this agreement with my other sister-in-law (SIL2, the aunt), especially before SIL1 got the child’s birth certificate corrected. As she was married when she gave birth, her husband was named as the father. As the marriage ended soon afterwards, she went ahead and got the DNA tests to confirm that someone else was the father and got her then ex-husband removed from the birth certificate.
During the time between the divorce and the amendment of the birth certificate she was very worried about something happening to her, as her ex-husband would have automatic custody of her child.
As soon as someone has a change in status, such as marriage, divorce or becoming a parent, they should talk to a lawyer about wills. And if there are children involved, there should be a discussion about the worst case scenario. Because sometimes the unthinkable happens.
During my first 10 years, if something had happened to my parents, I would have been uprooted from my home and sent to my uncle and aunt’s house. Then they got divorced, and then I would have been old enough to decide which set of grandparents, or if I would have stayed with my other uncle, who was married by then. Both my parents and I are quite happy none of this ever came up.
As a childless couple with decent income (and a stable home), my wife and I have been asked by five sets of parents from both sides to be the “just in case” guardians. Fortunately it has never come up, and most of the children are now past the age where it would come up. But, there were a lot of jokes at cookouts about making everyone stand apart, lest a falling tree leave us with about 12 kids to raise.
My brother and his wife are to take the boychik; we have a springing power of attorney over his guardianship if anything happens to us. My brother has a copy, and our lawyer has a copy.
We also drew up a document emancipating the boychik if we both die when he is 16 or 17. This is because of the way schools are; if he had to transfer to an out-of-state high school, he might end up doing an extra year, because requirements are so different, but also because he will have enough problems coping with losing his parents, and not need to be uprooted.
My brother will still be executor over a trust fund until he is 18, and I have a cousin who lives nearby, and an aunt and uncle (nearly in their 80s), who live about 90 minutes south, who can check up on him. He can even spend weekends with my aunt and uncle.
The only thing in our will are the details of the trust fund, and naming my brother trustee.
We’ve tried to account for every detail that could come up, but I won’t bore you with them here.
At any rate, yes, the will isn’t where this is done.
I guess the father and mother could draw up hasty powers of attorney when they were on ventilators. We talked to my brother and his wife about all this first, but he didn’t have to be present for anything, nor sign anything. I think the lawyer called him to make sure he had consented, but that was just the lawyer covering all bases.
