New Parents

"We're expecting our first baby. Are there any legal issues we should consider? What should we be thinking about? How can we provide for this child if something were to happen to us?"

Congratulations! Having a baby is an exciting time. It may seem overwhelming to think about adding one more thing to the list - and it's especially unpleasant to think about passing away at a time when you are preparing for new life.

Nevertheless, parents (both new and "experienced") do need to think about wills and guardianships. It is far better to be prepared and never need to implement your plan, than for you to unexpectedly pass away and leave your family without a clue about your wishes for your children.

Generally, if one parent passes away, a child will stay with the remaining parent. Even if the parents are divorced, the child will go to the surviving parent. (The exception is if the surviving parent is considered by the state to be unfit, which is relatively uncommon.)

The scenario that requires the most planning is the one where both parents pass away. Who will raise the child? Who will take care of the parents' property until the child is old enough to be responsible for it? When parents haven't created a legal plan that addresses these questions, it is not uncommon for family members to fight over the answers.

Virginia allows parents to nominate guardians for their children and custodians for their assets. If the parents do not nominate a guardian for their child in their wills, a court will do it for them. In making the decision of whom to nominate for guardian, parents might consider factors such as family ties, religion, marital status, geographic location, and willingness of the nominee.

Custodians take care of the parents' assets until the child reaches a certain age. If the parents do not nominate a custodian in their wills, a court will do it for them. (More details on the rules of guardianships and conservatorships can be found in this article.) Parents can also create trusts for their child(ren) with specific rules for how the assets can or cannot be used.

These can be difficult and emotional issues to decide, but this kind of legal planning eases the estate administration process and can help to prevent conflicts between grieving family members. Your attorney is there to help you make the best decision for your family.