Restrictions on Out-of-State Guardians for Minors

When naming guardians for your children in your will, it's 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 aren't necessarily those who live the nearest.

It's usually not a problem to name a guardian who lives far away. But, before you name an out-of-state guardian for your children, you should know that some states put restrictions on out-of-state guardians.

Which Type of Guardian Are You Naming?

There are two types of guardians: personal guardians and property guardians. Personal guardians make day-to-day decisions for children—they're like substitute parents. A property guardian manages the child's property.

You can name the same person for both jobs—and that usually makes sense. But there can be times when naming a different person for each job is better. For instance, one of your siblings might have a close relationship with your children, but another sibling might be much better at managing money. In that case, you can make one sibling personal guardian and the other property guardian.

When an Out-of-State Guardian Must Be a Close Relative

In two states—Florida and Oklahoma—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. (Fla. Stat. § 744.309; Okla. Stat. tit. 30, § 4-104 (2024).)

When an Out-of-State Guardian Must Post Bond or Have an In-State Agent

In many states, the court will require an out-of-state guardian to post a bond or have an in-state agent to receive legal documents on the guardian's behalf. In some states, the agent will be the court itself.

Having an in-state agent might mean extra paperwork for the guardian. But, unless you're trying to decide between an in-state guardian and an out-of-state guardian who are equally qualified, this extra burden shouldn't affect your choice.

When an Out-of-State Guardian Must Have an In-State Co-Fiduciary

In Iowa and Tennessee, the court will require out-of-state property guardians to have an in-state "co-fiduciary." This doesn't 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). In New York, a person who isn't a citizen of the United States and doesn't live in New York must have a New York resident serve as coguardian. (Iowa Code § 633.603; N.Y. Surr. Ct. Proc. Act § 707; Tenn. Code § 35-50-107 (2024).)

It can be burdensome for an out-of-state guardian to work with the co-fiduciary to manage the child's property. So, in the above states, naming a qualified guardian who lives in-state is often a wise choice.

How to Name Guardians for your Children

Traditionally, parents used wills to name guardians for their children. A will is still a valid and common method for designating guardians. But many states allow parents to name guardians in a legal document that could be called a "designation of guardian," "nomination of guardian," or "declaration of guardianship." Make sure you know the laws in your state before you use a document to name a guardian.

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

To learn more about wills and choosing a guardian for your children, go to the Wills section of Nolo.com.