How to Make a Will Legally Binding Regarding Custody of Children

by John Cromwell

A last will and testament is more than just a document describing how your property should be distributed after your death. A will can also be used to define who should receive custody of any children. What makes a will legally binding varies by state. One example of standards for drafting a will is the Uniform Probate Code (UPC). As of January 2012, 17 states have adopted the UPC and it is endorsed by the American Bar Association.

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Step 1

Select a worthy guardian for the child or children in question. A personal guardian has physical custody of the child, is responsible for the child's day-to-day care, and has legal responsibility for the child’s well being. A financial guardian manages the assets set aside for the child’s care and disperses those assets for the child’s benefit. Depending on the circumstances, you can either appoint two individuals to oversee these different aspects of the child’s care or one person to be in total control.

Step 2

Record, or have an attorney record, your wishes. Your will should be as specific as possible, clearly defining your wishes. This includes explicitly naming all individuals you want to have custody of your children and what you want those people’s role to be. So if you want person A to be the personal guardian and person B to be the financial guardian, it is important your will clearly specify those roles.

Step 3

Sign the will in the presence of witnesses. State laws vary concerning what constitutes a valid signature and how many witnesses are required when signing a will. For example, the UPC states you can either sign the will in the presence of witnesses or you can sign the will, show the document to the witnesses, and acknowledge the signature as your own. You can either sign the will personally or instruct someone to sign the will for you in your presence. To satisfy the witness requirement under the UPC, you can have two people sign to signify they witnessed you acknowledge the will. The UPC also allows you to have the will notarized to satisfy the witness requirement.