Most parents do what they can to make sure their children have secure and stable futures. Understandably, parents imagine themselves in those futures—they don't want to think about dying and someone else raising their children.
It's very unlikely that a child will lose both parents before turning 18, but part of planning for the future is preparing for the unthinkable. When making a will, naming a guardian for minor children can give parents peace of mind that, should the improbable happen, the right person will raise their children.
If you want to have a say about who raises your children, you need to name a guardian before you die. Without knowing your wishes, a judge could appoint someone who would raise your children in a way that goes against your values.
Even if you have several family members you'd trust to raise your children, naming a guardian can prevent arguments—and potential legal disputes—between family members over who gets to raise your children. It also can give older children the peace of mind that you gave your blessing to their guardian to raise them.
A guardian has the legal authority to care for a child or the child's property. In that way, the guardian stands in for the child's parents. There are two types of guardians that you can name for your child:
A personal guardian, often called a "guardian of the person," makes decisions about a child's day-to-day well-being, including physical, medical, and educational needs. Some examples of this guardian's responsibilities are:
In other words, this guardian will make decisions about how the children are raised.
A property guardian, often called a "guardian of the estate" or a "conservator," makes financial decisions for a child and manages the child's property. This guardian will decide how to invest and spend the child's money for the child's well-being.
If you establish a trust for your minor children, you will name a trustee to manage all the money and property you put in the trust. But you should still name a property guardian for any money or property your children might receive outside of the trust. In most cases, it makes sense to name the same person as the property guardian and as trustee.
A property guardian has a legal obligation to use or invest the child's money or property with the best interest of the child in mind. The guardian can't, for instance, buy a new sportscar or take a vacation with the child's money.
Guardians who steal money from children can face criminal charges. A court also could order them to repay any misused funds to the child's estate.
It's usually best to appoint one person as both the personal guardian and the property guardian, if your choice is capable of handling both roles. But, sometimes, it can be a good idea to choose a different person for each role.
For example, you could choose your mother to be personal guardian because she has a close bond with your children and shares your values. But maybe she's not savvy with money or doesn't have the energy to both care for your kids and manage their money. In that case, you could appoint another adult to be the property guardian.
A judge will make the actual decision about who will be your children's guardian. But it's important to make your wishes known through a will or other legal document because judges will follow a parent's wishes in a vast majority of cases.
A judge's main goal is to make sure a child's best interests are protected. If you choose someone who turns out to be unfit to raise a child, a judge will probably appoint an alternate guardian you named—if the alternate is willing and able to raise your child.
The most common way to name a guardian for children is to use a will. Each state has rules for executing a will. If your will doesn't follow those rules, it might not be valid, and a judge might disregard your choice of guardian.
Although wills are by far the most common way for a parent to name their children's guardian, some states allow parents to name guardians in a different signed document.
This sort of document might be called a "designation of guardian," "nomination of guardian," or "declaration of guardianship." States have different rules for creating and signing these documents, so it's important to know the laws in your state before you use one to name a guardian.
Picking the right person to raise your children and manage their finances can be difficult. Some people are lucky enough to have several great options but worry about offending loved ones. Others might have few good choices and struggle to come up with one or two potential guardians.
Regardless of how many options you have, there are several factors to consider to help you choose the right guardian.
Some people believe a guardian must be a family member, but this isn't a legal requirement. You can choose anyone you trust—and who meets the legal requirements—to be your children's guardian.
When naming a guardian, be aware of two typical legal requirements. To become a guardian, a person must normally be:
It's unlikely that someone would choose a 17-year-old to be a guardian, so the issue of the potential guardian being old enough is rarely a factor. But age can be a factor in that people sometimes choose an elderly parent of theirs as a guardian for the children. And, while plenty of people remain capable as they age, faculties can decline.
For example, if you choose your mother, who later develops dementia, a court won't allow her to serve as your children's guardian. In that case, a judge will typically appoint your alternate choice of guardian if you've named one.
If you want what's best for your children, you need to give your choice of guardian serious thought. You might have a family member who adores your children but who would have a hard time caring for them or managing their money.
Some questions to think about are:
Financial stability and responsibility are especially important for a property guardian because they will be responsible for safekeeping your children's money and property. You don't want someone who burns through money or always makes bad investment decisions in charge of your children's finances.
Before you name your guardian and alternate guardians in a will or other legal document, talk to them.
Find out if they are willing to serve. You might think your sister would happily raise your kids, but what if she's dealing with issues you aren't aware of, like a recent cancer diagnosis or heavy financial debt?
Talk to them about values that are important to you, such as religious preferences and education goals, and make sure they are willing to follow your wishes when raising your children.
It might be tempting to appoint a married couple as coguardians for your children. It could feel as if you are giving the kids more stability by giving them two people to care for them.
But coguardians could create instability in your children's lives. Two guardians could disagree about how to raise your child, or they could divorce. And if they divorced, whom would your children live with? Would there be battles in court for custody?
Although you have the right to appoint coguardians, it's often wiser to pick one person as the guardian to avoid these potential problems.
Whether or not you name a coguardian, it's important to always name one or two alternate guardians in case your first choice dies or becomes incapacitated.
Most parents will choose the same guardian for all their children. In most cases, it's wise to keep the kids together. After all, losing a parent is traumatic, and separating siblings can add significantly to that trauma.
That said, you don't have to name the same guardian for all your children. In some situations, it could be better to choose different guardians for your kids.
If you have children who aren't close in age, you might consider different guardians. A 12-year-old has different needs than an infant. Your elderly parents might be okay raising an older child but unable to keep up with a growing baby.
Also, if you have children with different partners, your children might have different family connections. In this situation, it might make sense to name different guardians so your children end up with people they know and trust.
If you and the other parent are married or otherwise raising your children together, you should name the same guardians for your children in your respective wills (or alternative guardian-appointing document). If you don't, and you both die at the same time, a court will have to decide between your choice and the other parent's choice.
If you're divorced, ideally you and your ex will be able to agree to name the same guardians. If you can agree, a judge wouldn't have to decide between your conflicting choices if it ever came to it. Even if you can't agree with your ex, you should still make your choice of guardian known to help the judge decide whom to appoint.
Although you can name your choice of guardian, naming one won't take away the other parent's right to custody. Remember, when only one parent passes away, regardless of any guardianship choice by that parent, the judge generally will grant custody to the other parent. (There are exceptions, though, such as the other parent being incapacitated or having had parental rights terminated by a court.)
In a similar way, if the other parent dies before you do, you generally will have sole parental rights. In this situation, a judge most likely will appoint your choice of guardian if you pass away later.
A judge might ask a child's opinion—especially if the child is older—if there is any question whether appointing the parent's choice would not be in the child's best interests.
Even if the judge doesn't question a guardian's fitness to serve, older children—usually 14 or older—can ask the court to appoint a different guardian.
If you have teenagers, it might be a good idea to discuss your choice of guardian with them. Maybe you think grandma would be a great choice, but your teenagers might want to live with their aunt and uncle.
As years go by, circumstances can change. A number of things can happen that can cause you to rethink your choice of guardian. For example, your original choice might become sick or move somewhere you don't want your children to grow up.
If you named a guardian in your will and want to change your choice, you can make a new will or use a codicil. A codicil is a document that's added to an existing will to make small changes to the will.
Because it's easy to use computers to modify documents, creating a new will isn't as difficult as it used to be. And, depending on how they're drafted, codicils can create confusion. Add the fact that codicils must be signed and witnessed in the same way as wills, and you can understand why many lawyers say there's no real advantage to using a codicil instead of just creating a new will to change your guardian choice.
If you used a different document to name a guardian, like a designation of guardianship, you can create a new, replacement version of that document. You should make sure it includes the date you signed it and language that the new designation revokes all prior designations of guardians.
If you change your mind, it might be a good idea to let the original choice know that you have chosen someone else. Depending on the circumstances, this discussion could be difficult, but it could prevent confusion and soften hurt feelings.