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Estate Planning Importance

Who gets custody of child if parent dies?

February 14, 2007

Albany -- The ugly battle over custody over Anna Nicole Smith's baby and her body will likely continue to make tabloid headlines for months. But it brings up an important question you may need to answer.

If parents of minor children die, who gets custody of their children? It may be left up to a probate judge if a parent doesn't leave a will.

Writing a will can help avoid a court battle over property distribution or child custody after your death.

Danielle Morrow is a working mother of two young daughters, and while her other half is deployed in Iraq, she rests assured each day that they'll be taken care of, should anything happen to her or her husband.

"We wanted to be able to have the say of who raised our children in the event that we were not around to raise them. So that we could put them in a home where they would be comfortable, and the person raising them would have the same outlooks on life and the beliefs that my husband and I share," said Danielle Morrow.

If the couple were to die unexpectedly, the Morrow's wishes should be carried out by a probate court, because they recently worked with an attorney on a will that states how their property will be divided after death. Morrow's will includes the name of a "testamentary guardian" or person she and her husband want to take custody of their daughters.

"They are my most prized possession so I want them to be taken care of," said Morrow.

Attorney Ralph Rodgers says everyone, even a person young and in perfect health should have a will legally signed and documented.

"You die without a will then the Georgia Statute of Descent and Distribution will determine how your property is disposed. So a will let's you make that decision rather than the state of Georgia making it for you," said Attorney Ralph Rodgers.

Rodgers says without a will the probate court may also appoint a person to take custody when children are involved.

"That might not be the person that the deceased person would have chosen," said Ralph Rodgers.

But Danielle Morrow doesn't even think about that. Since she named a guardian in her will, her daughters will go to the person she and her husband have chosen.

"It's a tremendous peace of mind. You never know when it's your time," said Morrow.

"In the event it does happen sooner rather than later, that my children are going to be taken care of means a lot."

A written will, legally documented, signed and notarized, provides legal protection in court after death, over money, property, and especially a person's most prized possessions.

A will must be properly witnessed or notarized to be enforced in a probate court. That's why attorneys suggest you find a lawyer you trust to help you.

Attorney Ralph Rodgers says if an unmarried woman with a child dies without a will, the paternal father can come forward and take custody of the child, but the child's inheritance would remain in the child's name.

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