Close Menu
Naples Estate Planning Lawyer
Naples Estate Planning Lawyer > Blog > Estate Planning > If I Die, Will the Florida Court Decide the Guardian of My Children?

If I Die, Will the Florida Court Decide the Guardian of My Children?

child guardianship in Florida

Who Raises Your Children if You Die Without Naming a Guardian?

Most Florida parents assume their closest relatives will care for their children if both parents die or become incapacitated. However, in Florida, this is not the case. Under Florida law, if you die without naming a guardian in your estate plan, the court will decide who becomes the guardian of your children. A judge, not your loved ones, will decide who will care for your children, and the individual they choose may not have been your first choice.

Florida courts decide guardianship based on what they believe to be in the best interests of the child(ren). When making their determination, the court will look to various factors, including the ability of the guardian to provide adequate care. As a part of the court process, any family member or other person interested in the child’s welfare can petition the court to become the guardian. This process can often lead to fighting between grandparents, aunts, uncles, and even friends who were a part of the children’s lives.  Each party may have different ideas about how to raise your children.

To avoid this outcome, parents living in Naples can name a guardian in their estate plan. Unless the person you choose is grossly unfit or unable to serve, the court will honor your wishes. Your estate planning attorney should help you make an appropriate choice. No one wants to think of a tragic situation where both parents would die in say a car accident, or perhaps an accident kills one parent and then illness takes the other parent a short time later. To be safe, it is wise to talk with an attorney with experience in estate planning.

Responsibilities of Your Child’s Guardian in Naples

In deciding who will be the guardian of your minor children, it is important to understand the responsibilities of a guardian under Florida law. Florida distinguishes between two types of guardians: “guardian of the person” and “guardian of the property.” The court can name different people or the same person for these positions.

The guardian of the person is responsible for caring for the child until they reach the age of 18. They are responsible for feeding, clothing, and housing the child. Additionally, they make the decisions that would have been entrusted to the parents, such as medical and educational decisions.

The guardian of the property is responsible for managing the property left to the child that was not placed in a trust if the amount of property is more than $15,000. Their duties could include paying bills, investing assets, distributing property to the child, and maintaining real property. The guardian must file accountings and inventories with the court so they can confirm that the guardian is acting appropriately. The guardianship ends at age 18.

If you do not want your child to receive control of their entire inheritance at 18, you can discuss placing the property in a trust. Your attorney can explain how to decide when the trust terminates (age 20, 25, 30, etc.) and how to place other restrictions on the management and distribution of the property.

How Do You Appoint a Guardian for Your Child in Naples?

No one wants to think about the “unthinkable,” but part of being responsible parents includes planning who will care for your children if you are no longer here to take care of them. All Florida parents should name a legal guardian for their minor child in their estate plan. You can clearly state the designated individual in your will.

The decision of who to appoint as your child’s guardian should be given careful consideration. You should pick the individual best suited to care for your children. Most importantly, you should think about your parental values and select an individual whose values and worldview align with your own. Logistically, you should consider the age of your potential guardian and where they live. If both set of grandparents are on the older side, your brother or sister may be more physically able to raise small children or rambunctious teenagers.

Most often, parents select a sibling, parent, or adult child. However, a guardian can even be someone unrelated, such as a close friend. A friend who is very involved in your life and the life of your child may be a better choice if they are willing than a sibling the children have only occasionally met.  If the guardian is unrelated, they must be a resident of Florida.

Once you make your decision, it is important to communicate your wishes with the potential guardian to ensure that they are willing and able to serve. Unless the person that you name is grossly unfit or unable to serve, the court will honor your wishes. It is also best practice to designate a backup guardian in the event that your first choice cannot serve for any reason.

Call a Naples Estate Planning Lawyer

If you have questions about a guardian for your children, you should contact the Nici Law Firm. James R. Nici is an experienced Naples attorney with over 25 years of experience in estate planning. He is well versed in these issues and can create an estate plan that fits your needs. Contact our office today at (239) 449-6150 or use our web form to set up a free consultation.

Facebook Twitter LinkedIn