Why Every Young Family Should Have An Estate Plan By Memphis Attorney Michele Gwinn

Posted By: Michele Gwinn on 01/02/2015

Have you ever considered who would care for your children if something happened to you and your spouse?  Recently, my youngest grandson was left in my care while his parents and two older siblings went to Birmingham.  I am a fairly typical Mom - I worry about my children, especially when they are far from home.  I began to think about the events that would take place if the unspeakable happened while my kids were traveling. In an instant, my focus shifted from my own children to concern for my grandchildren as numerous questions swirled through my head.  What would happen to my grandsons if their parents died? Who would care for them? Did my kids have a will? If so, where was it? How would custody be determined if my kids did not leave a Will?

Death is a scary thought for most people, so it is simply not discussed. Parents do not want to fathom the thought of leaving their young children behind.  Yet, determining who will care for your children in the event of your untimely death is one of the most important parenting decisions you can make.  Unfortunately, most young parents (and far too many older parents) have avoided making any decisions regarding the care of their children if they, the parents, died. For some, the fear that drafting any documents related to death will somehow lead to an early demise prevents decision-making. Even those parents who openly discuss their preferences of potential guardians for their children often fail to visit a Memphis Attorney who practices in estate planning to memorialize their desires. When individuals die without making a Will, they have died intestate. Intestacy is a legal term that simply means someone died without a Will. Unfortunately, various issues arise when parents of minor children die intestate. For example:

  1. Since the parents had not executed a Will with a provision stipulating a guardian to care for the minor child(ren), one will have to be appointed by the Tennessee court.  Both relatives and non-relatives will be permitted to petition for guardianship; however, preference is often given to family members who have a close relationship with the child(ren).  This is not always a smooth process because disputes arise among family members regarding where and with whom the children should reside, especially in those situations where the parents never expressed their wishes. Unfortunately,  the family discord can lead to a battle for guardianship, which only further fractures the family unit and extended family.
  2. Guardianship will be determined based on the “best interest” of the child. The Tennessee court will assess factors similar to those used in custody determinations in divorce cases, including: (a) the ability of the individual(s) to provide child(ren) with necessities;  (b) physical, mental and moral fitness of the potential guardian; and  (c) the love, affection and emotional ties that exist between the child(ren) and the potential guardian.  Despite the Tennessee court’s efforts to provide for the best interest of the child(ren), it is possible that the guardian(s) appointed will not be the person(s) the deceased parents would have chosen had they had the opportunity to do so themselves.

Parents, you are uniquely qualified to choose appropriate potential guardian(s) for your child(ren).   Not only do you fully understand the needs of your child(ren), but you also are in the best position to choose caregiver(s) who are able to meet those needs.  The following simple steps will help you effectuate the most favorable outcome for your child(ren) in the event of your untimely death:

  1. Have the conversation.  Talk with your spouse about potential guardians for your children. Consider what would be in the best interest of your child(ren), including the age, health, and ability of each potential caregiver to provide for your child(ren) long-term.  While grandparents might be a good choice today, will those same grandparents able to provide care in ten years?
  2. Meet with a Memphis Attorney and make a Will that contains a provision designating a guardian for your child(ren).  While the best interest factors are still consider, pursuant to Tennessee law, the Tennessee court will give preference in appointing a guardian to the individuals designated in your Will.
  3. After you have executed your Will, make sure that your loved ones know where to find it. Place it in a safe deposit box or other safe location for easy access in the event of your death.

Do not leave your child(ren)’s future to chance. Take the steps necessary to be an active participant in choosing a guardian for your child(ren).  Who will care for your children? The choice is yours.


Michele Brooks Gwinn, Esq.

5100 Wheelis Drive, Ste 100

Memphis, TN 38117

Phone: 901.347.0647

Fax: 901.255.0745

Email: MGwinn@midsouthattorneys.com