Naming a Child's Guardian in Your Will

If you have minor children, you’ve probably wondered who would care for them if something were to happen to you. Deciding who should assume guardianship and naming that person as your children’s legal guardian in your will is one of the most important steps you can take to protect them.

Usually, if the other parent is available, they will become the child's legal guardian and take care of them. But sometimes, this arrangement is not possible. Single parents often need to decide who will assume guardianship for their young child. Even with two parents, it’s wise to think about what would happen if both parents die close together in time.

What is Guardianship?

There are many different types of guardianship. To put it simply, guardianship is a legal structure in which a court appoints someone, called the legal guardian, to care for another person, called a ward. The ward is usually a minor child or an incapacitated adult.

This article focuses on how to use a will to name a personal guardian for minor children—that is, someone who will look after their health, education, and daily needs. Sometimes, you may also need to choose a property guardian to manage a child’s inheritance. To learn more about property guardians, see Naming a Child’s Property Guardian.

Why Should You Name a Guardian for Your Child?

Generally, if both parents are able and willing to care for their children, and one parent dies, the surviving parent will automatically assume physical custody and responsibility for raising the children. In many states, the surviving parent will also be granted authority by the court to manage any property left to the children, unless the deceased parent arranged for someone else to handle these matters in their will.

If both parents die, or if a single parent has no other parent to step in, there isn’t an automatic plan for who will care for the child. By naming a legal guardian and a backup in your will, you help make sure your children are cared for and have stability. When your will goes through probate, the judge will look at your choice and appoint your guardian if it’s in your children’s best interests.

Choosing Your Child’s Guardian: Factors to Consider

A personal guardian must be an adult, typically 18 years or older, and capable of handling the responsibilities involved in the job. It’s often best to pick someone who already has a close relationship with your child, like a stepparent, grandparent, aunt, uncle, or older sibling. But you can also choose a trusted babysitter, family friend, or even a neighbor. Whoever you choose, ensure they are mature, caring, and genuinely willing to take on this important responsibility.

When deciding on a personal guardian, look for someone who:

• knows your child well
• understands your parenting style and personal values
• is trustworthy, and
• will give your child love and steady care.

You can choose a guardian who lives in another state, but a judge will consider what’s best for the child and have the final say. Your state may also have extra rules for out-of-state guardians. See the next section for details.

Do You Have to Name the Child’s Other Parent as Guardian?

You don’t have to name the child’s other biological or legal parent as guardian. The other parent will automatically be granted custody unless a judge finds that it would not be in the child’s best interest. However, if both you and the child's other parent name a guardian in your wills, it is important that you both name the same person. Otherwise, if both of you were to die at the same time, there could be a conflict as to who should serve.

If there are good reasons why the other parent shouldn’t be responsible for the children, you can convey your thoughts in a separate letter, as discussed at the end of this article. Keep in mind, however, that it’s difficult to prove that a parent is unfit. A court is likely to deny custody only if the other parent has serious and obvious problems, such as a history of child abuse, chronic drug or alcohol abuse, or severe mental illness.

Can You Choose Different Guardians for Different Children?

When picking a guardian for your children, it’s usually best to name the same person for all of them, especially if they get along. However, if your children are not close, have strong ties to different adults, or are part of a blended family, you may want to consider designating different guardians for each child. Ultimately, you should pick the person who is best for each child’s needs.

Can You Name More than One Guardian for a Child?

You can name more than one guardian for your child. Often, parents pick a married couple to serve as co-guardians. Such a choice can provide stability, but it’s essential to select people who work well together. Each co-guardian has an equal say, so disagreements can cause problems if they don’t see eye to eye.

Even if you name more than one primary guardian, you should choose one or more alternate guardians to serve in case your first choices can’t.

Choosing Your Child’s Alternate Guardian

You should choose a backup or alternate personal guardian who will step in if your first choice is unable to take the job at the time of your death. When naming an alternate personal guardian, the criteria are the same as those for making your first choice: reliability, a caring heart, a good relationship with the children, and willingness to serve.

How to Appoint Your Child’s Legal Guardian

Naming a legal guardian for your child in your will is usually the best way to make sure your wishes are honored. A will is a formal, established legal document, and judges will give considerable weight to guardianship designations made in it. Your will also makes your wishes clear and easy to find after you’re gone.

Once you’ve made your choices about who the guardians should be, the process of naming them in your will is straightforward. Here are three steps to take:

1. Discuss your decision and wishes with your chosen guardians (first choice and alternate) to ensure they’re willing and able to take on such an important responsibility.
2. Use clear language to name your chosen guardian and alternates in your will.
3. Make your will legal by signing it in the presence of witnesses as required by the laws of your state.

By taking these steps, you help to ensure that if something happens to you, your kids will be cared for by the people you trust most.

How Courts Make Guardianship Decisions

As mentioned earlier, a court must approve your choice of personal guardian based on what is in each child’s best interests. When making this decision, a court will consider several factors. You should also keep these in mind when choosing a guardian and alternate in your will:

• Can the proposed guardian offer stability and continuity of care?
• Who is best able to meet the child’s specific needs?
• What is the quality of the relationship between the child and the potential guardian?
• Does your child have preferences? If so, what are they?
• Does the proposed guardian display good character and conduct?

Additionally, if an individual or couple has regularly spent significant time with the child or has a particularly strong bond with them, a court may take this into account when making its decision.

Explaining Your Choice for Personal Guardian

Including a written explanation in your will about why you chose a particular personal guardian can be helpful, especially if you think a judge might question your decision or if your situation is complex. Providing your reasoning is particularly important if the other parent may not be a suitable guardian or if your choice of guardian is not obvious.

When You Don't Want the Other Parent to Be Guardian

If you do not want your child’s other parent to have custody of your minor children, you can name someone else as guardian in your will and include your reasons for this choice. However, the judge will usually grant custody to the other parent unless they have legally abandoned the child, are clearly unfit to parent, or decline custody and a more suitable guardian is available.

When Your Partner Is Not Your Child’s Legal Parent

If you are raising your children with a partner who isn’t their legal parent, you may want to name that person as their guardian. If you do, it’s a good idea to explain your choice so that the judge understands the importance of the relationship between your children and your partner.

If you die while your children are still young, a judge will look at your family situation and decide what’s best for your kids. Including a note in your will that explains your choice and provides the judge with helpful information can increase the likelihood that your wishes will be followed.

What Happens If You Don’t Nominate a Child’s Guardian?

You don’t have to name a personal guardian for your child. If the other parent is no longer living or is unable or unwilling to serve as guardian, a state court will appoint a guardian based on the child’s best interests, considering the factors in the section above. In most cases, the judge will choose a close relative, such as a grandparent or sibling, to take on the role.

Learn More About Wills

If you don’t know who to name as your child’s guardian, or if you need help finding and understanding the laws of your state—especially if you want to appoint an out-of-state guardian—think about contacting an experienced estate planning lawyer in your area.

For more information about wills, see the following articles:

• Why Do You Need a Will?
• How to Make a Will
• Types of Wills
• What Is an Executor?

You can find out more about making WillMaker’s will and living trust in WillMaker’s Legal Manual.