Legal Question in Wills and Trusts in Florida

Re: If both parents die what happens to minor children

Although the law does not require that the court appoint as guardian the person(s) you and your spouse have chosen, the court will do so unless there are objections from relatives, the person appears unfit, etc.

Since, in Florida, a guardianship must be open through an attorney, the attorney will take care of the forms (petitions to appoint guardian, etc.).

Keep in mind that there are two aspects of guardianship: guardianship of the person and guardianship of the estate. If a trust is not set up, there will be a guardianship for the property as well as well as for the children themselves. The guardian of the estate can and often should be a different person, but not necessarily.

Best wishes.

Re: If both parents die what happens to minor children

The State of Florida has the ultimate authority as to the placement of your children in the unfortunate event that you and your spouse pass away while the children are still minors.

Having said that, the State will try to keep the family together and generally will place minor children with family members if at all possible. You should express your desires in your will so that the appropriate authorities will be informed. I would suggest that you speak with your family members so that they are aware of your intentions and are willing to accept them. Do not name a party to care for your children who may not accept that responsibility.

Scott R. Jay, Esq., 305-249-8000