Taking care of your minor child if parents are no more

February 2nd, 2024 Latest Blogs

Ramesh & Anita, in their 30’s was a happy couple. They had an 8 years old daughter, Tanya. One night, they were returning from a late dinner party when they had an accident and tragically both died. 

The question then arose who will look after their daughter? How will their funds be managed so that their daughter is well looked after? Ramesh had a term insurance which had a good cover. The nominee was his wife, who could have claimed the money. They had not made their will & had not planned on who will get custody of their child. Most of the elders do not prepare their will, then how can we expect youngsters do so? Earlier, we had joint families & in such a case there were family members who would take charge. Now a day’s people have no siblings who can take care of orphan child. Even if the siblings are there, they may or may not be able to do the needful. For example, they may be living abroad & this creates its own problems.

In case of a minor child there are 2 factors. Who gets custody of child & who gets the custody of estate to manage till the time the child attains “major” status?  Parents of the child should plan for such an eventuality during their lifetime. The person who has custody is called the guardian of the child, while the person who manages the child's assets is called the guardian of the estate. This task can be given to the same person or it can give to different persons to do so.

Appointing a legal guardian for the child

A legal guardian, or conservator, is an adult who has the legal authority to care of the child, should the parents die before the child reaches adulthood. Naming a legal guardian is probably one of the hardest decision’s parents must make, but it is an important one. Unless you nominate a legal guardian in your will, a third party with “legitimate interests" could step forward and petition the court for custody. The court will decide on who gets the custody based on its judgement. If the parents had left a will, court would have gone by their wish.

The Importance of a Will

Parents need to have a will to ensure their child is cared for according to their wishes. While it's hard to imagine someone else raising your child, nominating a legal guardian not only gives you peace of mind knowing your child will be cared for, but lets you decide who that person will be, such as a family member or a close friend. It is better that the parents make a joint will naming a person as a guardian of the child in case they are not there.

Guardianship is an important responsibility. Ask yourself if the person you want to nominate is emotionally, financially, and physically able to care for your child. Select two or three potential candidates and arrange a meeting with them to discuss your decision and get their assent. It's wise to pick an alternate guardian just in case something should happen to your first choice. Review your decision every two to three years in case circumstances change.

Intestate Decisions

If the natural parents die intestate—without a will—the court appoints a guardian. As a rule, the court nominates a family member, such as a grandparent, even if this is someone you do not want to raise your child. Without knowing what your wishes are, the court acts in the best interests of the child. Alternatively, a third party, such as a family friend, can petition the court to be appointed guardian. If the child has no surviving family members, they could become a ward of the state and enter the foster care system

Managing Assets

If both parents die while the child is still a minor, they will want their assets to be used to care for their child. The parents can name a property guardian in their will to manage their assets on the child's behalf. This can be the same person that you nominate as guardian. The property guardian is appointed by the court and the court monitors their activities. Guardianship ends when the child attains 18 years of age.

If the parents don't have a will, the child automatically inherits his share of the parent's estate. The assets are then held in an estate in the minor's name and overseen by someone appointed by the court. Once the child turns 18, the assets go directly to him.

Alternatively, parents can set up a minor trust and appoint a trustee to manage it. The guardian of the estate then asks the trustee for funds from the estate to take care of the child. The trust doesn't automatically terminate when the child turns 18. Instead, the parents can determine when the child inherits the estate.

Estate planning is often the last thing on the mind of parents with young children. Accidents happen and anyone can die, leaving behind their minor child, so it's imperative to plan for the worst-case scenario.

 The parents need to prepare the will for child. We at can help you with the preparation of all the documents.  Please get in touch with us at 

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