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Author Topic: What would happen if I died?  (Read 1040 times)

leftoverinmn

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What would happen if I died?
« on: Jan 09, 2005, 12:33:57 PM »
I'm worried about my son's father contesting my will. I wish it wasn't this way, but due to his meth addiction and alcoholism, I named my older sister and her husband as his guardian.

I have 2 life insurance policies totalling 300G naming my son as the benificiary. One policy directly lists my mother as the trustee (through a private company). The other one, purchaced through my employer, has no trustee listed.  However, my mother is listed as the trustee in my will for my son's estate.

It scares me that he could contest my will and get custody of our son and my life insurance. He's not capable of maintaining sobriety, has no relationship with his son. My boy is 5, dad's been gone 4 and a half years. He would only be doing it for the money, not because he cares about our son.

Can he contest my will?

Can he be named trustee, and spend it however he wants?

Are there any additional steps I can take to assure my son's future if I die? (besides adoption)

Would a judge look at dad's intent when making a decision?

Thanks for your time, and saving me a $100 trip to my lawyer. I probably should have asked her this when she made out the will. But I didn't have life ins then..Thanks again.


socrateaser

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RE: What would happen if I died?
« Reply #1 on: Jan 09, 2005, 01:09:49 PM »



>Can he contest my will?

Designating Guardianship. Your naming a guardian in your Will for the child other than the other legal parent will be given some weight by the court, however, the other parent has fundamental constitutional rights to custody and care of a child, assuming the establishment of a parent-child relationship, that your will cannot defeat. Regardless of who brought an action to determine lawful custody of the child (father or putative guardian), the court would look at the existing relationship between father and child at the time of your passing, and determine whether the child's best interests were served by placing the child with a person other than the father. However, the father's fundamental rights would carry great weight in any final judgment.

In short, father would not be contesting your Will, because you do not have the power to grant custody of your child to another person. You can delegate your power to guard the child to another during your life, but your right to custody and the power to delegate a guardian is extinguished at the moment of your death.

Even if an IL statute grants you the power to designate a guardian in your Will (and I'm not an IL law expert, and I haven't research it, so I can't comment intelligently), the father's fundamental rights are greater, ASSUMING that he can demonstrate an established parent-child relationship.

Which, if as you say, he cannot, then the father would lose his contest to obtain custody of the child.

Life insurance. A beneficiary designation in a life insurance policy is not administered in probate. The benefit passes directly to the beneficiary, i.e., the child, and in the case of the other policy, to the trustee, for the child's benefit.

If the child's father were to obtain custody, then he would also have practical control over any of the child's assets, and this includes your employer-sponsored life insurance policy. As to the money distributed to the trustee, even if you create an express trust for the purpose of preventing the child's father, or any other creditors (aka spendthrift trust) from reaching these funds, if the father can show that the funds are necessary to the child's support, then the court will order them distributed as necessary.

A child's need for support completely overshadows almost every possible other legal theory, unless the opposing party is a complete legal stranger and the child has intentionally injured that person.

>Can he be named trustee, and spend it however he wants?

Not trustee, dear...custodian! There are laws that prevent him from squandering the child's money, but as a practical matter, what usually happens is that the parent wastes the money, and then the child tries to sue to get it back when the child is an adult. And, in the case of a deralict parent, there's no way to get it back, so the kid is SOL.

This doesn't mean all is lost, however. If the father is as messed up as you suggest, then the trustee can resist father's legal attacks with the funds of the trust, father probably won't have much money to fight with, and may give up. Furthermore, the father apparently could not prove an established parent-child relationship, thus a determined guardian named by you could probably win this argument in court.

On the other hand, if the father rehabilites before your death, then why shouldn't he be allowed to take charge of the child and the child's assets?

Your other option, would be to change your life insurance policy to name your current trustee as beneficiary of the policy, and cut your child off entirely, and simply hope that blood is thicker than water, i.e., that the beneficary would give the money to your child when the time came.

>
>Are there any additional steps I can take to assure my son's
>future if I die? (besides adoption)

Not really. Adoption and simultaneous termination of the current father's legal rights would be the most certain means of eliminating this problem -- also, probably the most difficult to accomplish.

>
>Would a judge look at dad's intent when making a decision?

Nope. Judge is gonna look at dad's ability to parent as against a challenge from your guardian. That is the "raison d'etre" of this case.

>
>Thanks for your time, and saving me a $100 trip to my lawyer.
>I probably should have asked her this when she made out the
>will. But I didn't have life ins then..Thanks again.

No worries, be happy.

leftoverinmn

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RE: What would happen if I died?
« Reply #2 on: Jan 09, 2005, 02:21:19 PM »


>On the other hand, if the father rehabilites before your death, then why shouldn't he be allowed to take charge of the child and the child's assets?

Oh, oh, if I had one free wish... I still hope that happens someday, but very unlikely. Just trying to imagine worst case and probable future, ya know?

>Not really. Adoption and simultaneous termination of the current father's legal rights would be the most certain means of eliminating this problem -- also, probably the most difficult to accomplish.

Why is it difficult?
What if both parties consent to adoption? Does that make it easier? I live in MN, in case I forgot to tell you..

Would his CS arrears remain in place after an adoption?
Could I offer dad forgivment of his NPA arrears if he consented? sounds really awful, but I think he'd jump at the chance.

Thank you so much, again. Really helps to ease my worries.




socrateaser

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RE: What would happen if I died?
« Reply #3 on: Jan 09, 2005, 02:57:44 PM »
>Why is it difficult?

Court won't permit it generally, unless you have someone prepared to step into current legal father's shoes and father consents.

>What if both parties consent to adoption? Does that make it
>easier? I live in MN, in case I forgot to tell you.

Yes. Otherwise, it's extremely difficult.

>Would his CS arrears remain in place after an adoption?

If you have a judgment for arrears, that judgment would still be valid.

>Could I offer dad forgivment of his NPA arrears if he
>consented? sounds really awful, but I think he'd jump at the
>chance.

Ahem, well you could offer it, however, if you do so, the offer cannot be contingent on his agreement to relinquish his parental rights, because that is the rough equivlent of selling the child (you know -- slavery). You can have both orders stipulated to by all parties in the same setting and at the same time, but the terms and conditions of each must be entirely independent of each other, so that after signing one, either of you would be free to refuse to sign the other. Otherwise you could find yourself possibly having committed a felony.

So, for a few moments, both of you would be somewhat at risk, because neither of you could go back to court later and try to explain this deal to the court.

Nevertheless, it is possible. But, he should also realize that by relinquishing parental rights, he will have no future support duty, and that should provide him with some additional incentive, assuming he is as you describe him.

Of course, you must also convince the new putative legal parent to adopt, and soooometimes that can be a neat trick, too -- could be a strain on your new relationship.

leftoverinmn

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RE: What would happen if I died?
« Reply #4 on: Jan 09, 2005, 03:15:03 PM »
>Ahem, well you could offer it

Yea, I said it sounded really awful..

I wouldn't want to proceed with an adoption unless it was what everybody wanted. I don't want to fight anymore.

Thanks for the heads-up. It's greatly appreciated, especially on a sunday night.



 

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