Q: If there was no will, and no legal guardian after parents death will custody of the children go to the executor ?
-dad adopted child
-child has no legal mother
-dad dies with no will
- daughter becomes executor
- other family member petitions the court to become guardian
Who legally becomes guardian of a minor child and their assets?
A: Guardianship does not happen automatically. You must petition the court to become guardian of the child. The court will most likely chose the person(s) who have a relationship with the child most similar to a parent-child relationship. If you want to be considered, you must petition the court and/or respond to and attend the hearing scheduled for the ones who did petition.
No person would automatically have custody of the minor child, although the director of the local DSS might become their legal guardian for a short period of time. Ultimately, any person could apply to the Clerk of Court to become the minor's general guardian, and the Clerk has the authority to decide. See NC General Statute 35A-1221.
The absence of a will actually doesn't matter very much - in a will a parent can indicate who they WISH to be the guardian, but the clerk of court still has to make the ultimate decision (although they are to give "substantial weight" to the party listed in the will).
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