How to Establish the Guardianship of a Minor Child in a Will

By Beverly Bird

Naming a guardian in your will is only the first step toward making sure your children are cared for if something should happen to you. Your will isn't a court order – it's just a document that makes your wishes known. You can take certain actions to help ensure the court honors your request.

Naming a guardian in your will is only the first step toward making sure your children are cared for if something should happen to you. Your will isn't a court order – it's just a document that makes your wishes known. You can take certain actions to help ensure the court honors your request.

Selecting the Guardian

Selecting a guardian can be a torturous task because so many considerations are involved. If you name your parents, it's possible they could predecease you, or they could be too old to feel up to the job. If you're divorced, custody likely could go to your ex as their sole living parent, no matter what your will says. Speak with the individual you're nominating as guardian to make sure he's willing to raise your children. Consider naming someone else to handle the children's inheritances, so one individual doesn't have unilateral control over your kids' welfare and finances.

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Getting Court Approval

The court will likely approve your selection for guardian after your death. As a practical matter, courts almost always do so, unless the person you nominate is unfit. You can avoid a problem after your death by writing down why you chose the person you did, particularly if you don't want custody to go to your ex. You can explain to the court why you don't want the children's other parent to raise them, and if your reasons are compelling enough, the court might agree. Make sure your named executor has a copy of your written explanation, or attach it to your will.

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How Hard Is It to Overturn Guardianship in a Parent's Will?

References

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Appointing a Guardian for a Minor Child in New York

Parents, relatives or social services agencies face the emotionally challenging decision of guardianship of a minor child in a number of circumstances. Appointing the guardian for a minor child determines who takes care of the child until she turns 18. New York courts must approve guardians and are primarily concerned with what is in the best interests of the child.

What if the Executor of a Will Is Dead?

The person you name in your will to manage your estate is called the executor. Other terms include fiduciary or personal representative. This person's duties include gathering your assets, paying taxes and bills owed by your estate and distributing the remaining assets to your beneficiaries according to the terms of your will. If the person you named as the executor is not available or is unwilling to serve for any reason, your state's laws allow the court to appoint someone else as executor.

Can a Permanent Legal Guardianship in Texas Expire?

A person with a mental or physical disability may need the assistance of a guardian to help him make decisions about his finances, healthcare, living arrangements and other life issues. In such situations, a probate court judge listens to the evidence and appoints a temporary or permanent guardian if he determines that is necessary. A temporary guardianship expires after 60 days, but a permanent guardianship remains in effect until the court issues an order to terminate it. However, a guardian's authority to act may expire under certain circumstances.

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