questions & answers

Question: If both parents have passed away and the will wasn't finished before they were both passed away, but their wishes were known as to who should get the 2 children. Will that family member get the children or who legally would custody of the kids go to?

Answer:

One of the most important reasons to have a Will is for a parent to name the guardian(s) for their dependent children. Unfortunately, the verbal wishes of the parents are not adequate to determine who will be appointed as guardian(s) for the children. The Guardian is the person or persons who will have physical custody of the children and may also assist with the property of the children. Even if a guardian is named in the Will, the Court cannot make any appointments contrary to the best interests of the children and may consider proper objections of the child.

In Arizona, if the parents of the children are deceased and a guardian has not been named in a Will then a petition must be filed with the Court to have a guardian appointed pursuant to Title 14 of the Arizona Revised Statutes.

A.R.S. 14-5207 allows any person interested in the welfare of the children to petition for appointment of a guardian and the guardian will be appointed based on the best interests of the children. If the children are over the age of 14 the court may also consider their wishes in the matter. If someone other than a relative petitions for custody of the children then additional criteria must be satisfied before the Court will appoint that person as the guardian.

An interim guardian may need to be appointed and the Court may require the guardian to post a bond prior to appointment. A conservator may need to be appointed to handle financial matters relating to the children. The conservator may be but is not necessarily the same person or persons as appointed guardian of the child. Although having the court appoint a guardian is a fairly straight forward procedure, the appointment of a guardian in a Will makes the process much easier, especially during this difficult time. It would be best to have an attorney assist with the appointment of a guardian.

 A referral for an attorney, if needed, may be obtained by contacting Referral Services at 602-263-8856.

Community Legal Services may provide assistance to qualified individuals; their number is 602-258-3434 or 800-852-9075.

Additional legal resources may be found at the Arizona State Bar Association website. 

Further information may be available by calling Lawyers on Call, the 1st Tuesday of the month between 5 and 7 pm.  Unfortunately, the session devoted to probate issues will not be held until December but a caller will be provided with helpful information at any time.