What document decides who gets custody of kids it both parents die? Is it a will? A living will? A trust?

Question

How do my wife and I specify who we want to take care of our kids if we die or become incompacitated? Does that family need to formally agree in writing, in advance? Can other family members sue for custody if they don't like our decision?

Answer 1

Technically, you cannot compel anyone or any court to award custody of surviving minor children (there may be exceptions in some states, but I am not aware of any). You can specify a person or persons in your will, but that might not be found, much less probated, for months, so I do not usually recommend that.

Your best bet is to provide the person(s) you want to have custody with a signed declaration that you want them to have custody. They will have to petition to become their legal guardians, and this document will speed things along.

If you want to name someone in the event you become incapacitated, a limited durable power of attorney designated them as cutodians/attorney(s) in fact would do.

Answer 2

A will decides what happens after you die, so, taht's what you want.
A living will is incase you are somehow unable to care for them (like in a coma/incapacitated).
A trust is something you set up for monetary support for your kids.

So, you may want to set up both a will & a living will. I'm not 100% positive, but, I do not think that anyone can sue to change your decision (unless they have reason that whomever you chose is mentally/physically unfit to take care of them)

Answer 3

Generally in your will, but it will only be 'taken into account' if someone challenges it and the court finds that person isn't suitable, or if the person declines.

Answer 4

A simple will covers it.

Answer 5

the government decides how would you know what happens you will be dead