Legal advice - Creating a will (orphaned, custody, divorce, parents)

[cooper_man]

Hi there,

This is a bit of a strange one for you all and wondering if anybody can help.

Myself, my wife and our three year old daughter moved here from Ireland in Oct 2019 (my daughter was just 2). We relocated for my work and are in NJ.

We have no family or close friends nearby, we certainly have friends/acquaintances but nothing more than that.

It dawned on me recently, particularly with COVID, that if something were to happen both my wife and I, and our daughter was left behind, we have no guidance on who should care for her in the immediate and long term. For example, in the unlikely but not impossible case of a car accident or both of us being struck down with a virus - all seems more possible now than ever before.

Our closest family (our parents, siblings) are in Dublin Ireland but we do have family (my wife's sister and her husband) in Portland Oregon.

Can any body advise on what we should do to -

A) Ensure the immediate welfare of our daughter should something ever happen. (I thought about carrying something in my wallet but that seems weird and tempting fate).
B) Ensure the long term welfare of our daughter (she will be the sole recipient of all of our assets in NJ, with an executor in Ireland managing the process).
C) Ensure that the state knows that the new legal guardians of my daughter will be who we outline.

I don't even like writing this email, makes my skin crawl, but as 'foreigners' here compared to being surrounded by family at home it sounds more like it's necessary?

Thanks in advance!
Cooper_man

[Aredhel]

You need to talk with an estate attorney. He/she will be able to draw up a will that will cover all the issues you have named. You and your wife also need to talk with all of your siblings, to determine who should get custody of your daughter should the worse happen. The closest isn't automatically the best choice.

[WellShoneMoon]

Originally Posted by Aredhel

You need to talk with an estate attorney. He/she will be able to draw up a will that will cover all the issues you have named. You and your wife also need to talk with all of your siblings, to determine who should get custody of your daughter should the worse happen. The closest isn't automatically the best choice.

^^This. You need professional advice. See an estate attorney, not the guy who advertises $99 wills and divorces.

[Cloudwalker]

Fellow expat with children here. I agree, you need to see an estate attorney, but it also needs to be someone who has real experience in Conflict of Laws (deciding which country's laws hold primacy).

My rough understanding is:

- if you die in the US, in the first instance it will always be a US court that makes an initial determination on her care
- if you are here temporarily for a defined period on a work visa and expect to return home to Ireland, it would generally be
referred on to the Irish courts that make the long-term decisions on guardianship, etc
- if your stay is more indefinite and you've established ongoing residency in NJ, it may be NJ courts that decide on
guardianship.
- US courts ultimately must make determinations as to what they think is in the best interests of the child, regardless of
what's in your will. If NJ ends up having jurisdiction and your will designates a guardian for your daughter (and it should),
the court will look to the document in making its decision, but it is not binding. Parents wishes are strongly influential and
there would have to be compelling reasons to not follow them, but it can still choose not to if it believes that it's not in the
best interests of the child to be removed from the US. e.g. if you were to die when she's 11 or 12, she would have lived
80% of her life in the US, grown up and had all of her schooling here, there's a family member that already lives in the
US...you may find that a court is reluctant to assign guardianship to someone living in Ireland
- if you want your daughter's guardian to be a family member living in Ireland, and not the sister in Portland, clearly
document why you've chosen that guardian and why that choice would be in the best interests of your child (e.g. strong
emotional ties to the proposed guardian, regular ongoing contact has been maintained, wanting them to grow up in Irish
culture, etc).
- even with a will that specifies guardianship, you will need some kind of document (varies from state to state) to establish
temporary or standby guardianship which addresses who should make decisions about the care of your child in the interim
until the broader jurisdictional matters have been determined. Designate a back-up as well in case the first person is
unavailable.
- you should review the will and accompanying documents every 5 years or so as she gets older

From a practical point of view, even before you see a lawyer, today write out a brief document to be carried in your wallet and given to any caregivers (e.g. daycare) that outlines what should happen immediately on the day of your death or incapacitation. Make sure there is someone local who can take her until family arrives, and again, have a backup. "Call XYZ for immediate, short-term care. Call sister in Portland on this number. Notify family in Ireland on this number."

I agree, it is an incredibly confronting process to even think about, but if you don't do this, and you both die, the reality is she will go into foster care that night until the system can figure it all out, and that's absolutely not what you want. I used to work at a consulate, and while parents dying overseas and leaving orphaned children is not that common, it happens more often than any of us would like to think.

[parentologist]

You're actually right to be thinking of this. The car accident scenario is not that unheard of. Car seats in the middle of the back seat keep kids pretty safe in accidents - safer than the seatbelted adults in the front seats. I agree, carry instructions in your wallets, and get a will made with an attorney.