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If you and your spouse die without a Will, the decision of who gets custody of your children will be made by the Surrogate Court Judge in the county in which you live.  Obviously, you want to avoid this, as the Judge’s decision may be very different from what you would have wanted. The way  to avoid such a situation is to prepare a Will. 

 If you die with a Will, the decision of who gets custody of your children will be yours because in your Will you appoint the person who will be granted custody of your children if anything happens to you.  In addition to determining who will be granted physical custody of your children, your Will also enables you to make decisions about their financial future.  For example, in your Will you will establish a Trust into which all of your assets will be placed.  The funds in this trust will provide for the care and support of your children. 

 In your Will you will appoint the person who will be the Trustee of this Trust (who will be responsible for make financial decisions for the children until they reach a certain age) and determine when the children will receive the monies in the Trust.  Many people provide for the money to be disbursed in increments when the children reach certain ages - i.e., ½ at age 21 and ½ at age 25.  Without a Will, your children would receive the full amount of your estate at age 18, which is often not the desired result.  

The bottom line is that if you create a Will, all these decisions are yours.  If there is no Will, any money that would be due to your children would be kept in an account that is supervised by the Court and a guardian will be appointed to the children for the purpose of controlling the distribution of monies from that account.  While it is possible to have a member of your family appointed guardian, the guardian would have to obtain Court approval to make expenditures on behalf of the children (i.e., to purchase a new computer for the children) and the Court may not approve the requested expenditure.  

For all these reasons, it is very important to prepare a Will, especially if you have minor children.