Legal Question in Wills and Trusts in Illinois
Defining custody after death
My wife is a Mexican citizen and a permanent resident of the United States. I am an American citizen. We are both living in the US with our two children, ages 6 and one. Both of our children were born in the US and have dual citizenship between the US and Mexico.
In our will we would like to specify that in the event of the death of both me and my wife that full custody of both of our children be given to my sister-in-law who permanently resides in Mexico. We want our children to be raised by my sister in law in Mexico and not in the US.
We were told by a lawyer that this could present complications because the children do not live now in Mexico, but rather in the US. If we both were to pass away, we would want our children to move to Mexico permanently.
What complications could we have if any? Can this be done? Where can we find a lawyer who can correctly author a will specifying these details? I appreciate your assistance.
Thank you.
2 Answers from Attorneys
Re: Defining custody after death
I am an Illinois lawyer that concentrates in this area. You are correct that your wishes regarding child custody and guardianship should be specified in your will.
One can never guarantee that custody will be carried out according to one's wishes. Ater your deaths, a court is always free to consider what is in the "best interests" of the children. From a practical standpoint, however, custody designations by will are generally given great weight and are generally followed unless legitimately contested by an appropriate person --usually a close relative.
The only complications that may appear, other than being contested by another relative, is from a Mexican immigration standpoint. I don't know Mexican immigration laws and their restrictions, but if the are already citizens of Mexico, I would doubt that they would have problems moving there.
I know of at least one lawyer that authors wills like these. His name and office location in Palatine, Illinois is indicated below. If you are interested, you can e-mail me or call me directly at (847) 991-2250. You can also check out our website at http://www.illinoisestateplan.com
Re: Defining custody after death
Hello. This poses a problem
in my opinion. Generally,
a court in Illinois would
weigh what is in the best
interest of your children.
A will provision that your
children live with your sister
inlaw is not enforceable in
my opinion and it would be
better to have an understanding with you sister
in law that, upon the death
of you and your wife, that
she seek to adopt your
children. That is about
the best answer that I can
give and I hope this helps.
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