Restrictions on Out-of-State Guardians for Minors

When naming guardians for your children in your will, it is usually best to name a guardian who lives relatively close to your child. However in many families, those who have the closest relationships with the kids are not necessarily those who live the closest, and it is usually not a problem to name a guardian who lives far away.

However, some states put restrictions on guardians named to care for a child or a child's property if that guardian lives in another state.

When a Guardian Must Be a Close Relative

In two states, an out-of-state guardian can serve only if the guardian is closely related to the minor, such as a grandparent, brother, sister, uncle, aunt, niece, or nephew.

These states are:

• Florida
• Oklahoma

When a Guardian Must Appoint an In-State Agent

In many states, the court will require an out-of-state guardian to name an in-state agent to receive legal documents on his or her behalf. In some states, the agent will be the court itself. Having an in-state agent may amount to extra paperwork for the guardian, but unless you are trying to decide between an in-state guardian and an out-of-state guardian and they are equally qualified, this extra burden shouldn't affect your choice.

These states are:

• Arkansas
• Colorado
• Connecticut
• District of Columbia
• Illinois
• Maryland
• Nevada (resident agent is called coguardian)
• New Hampshire
• North Carolina
• Rhode Island (property guardians only)
• South Dakota
• Texas
• Virginia (property guardians only)
• Washington
• West Virginia

When a Guardian Must Appoint an In-State Co-Fiduciary

In three states, the court will require out-of-state guardians of property to have an in-state "co-fiduciary." This does not apply to the guardian of a child, but it will apply to the guardian of a child's property (who is often the same person). The out-of-state guardian will have to work with the co-fiduciary to manage the child's property. This could be quite a burden on your intended guardian. So in these states, naming a qualified guardian who lives in-state is often a wise choice.

These states are:

• New York
• Iowa
• Tennessee

How to Name Guardians for your Children

When naming guardians for your children in your will, keep these restrictions in mind. Living in a state that restricts out-of-state guardians may affect your choice of guardians—particularly if the guardian must be a relative, or if working with an agent or a co-fiduciary will be a heavy burden for the guardian.

If you're not sure who to name as your children's guardians, or if you want to know more about how your state's restrictions will affect your guardian, see an experienced estate planning lawyer in your state for advice.

To learn more about choosing a personal guardian for your children, read Guardianship for Your Children.

To learn more about making wills, go to the Wills section of Nolo.com.