Naming a Legal Guardian in Your Will

by Anna Assad
You may need to appoint 2 separate people as guardian.

You may need to appoint 2 separate people as guardian.

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Naming a guardian in your will allows you to choose who will act as the parent of your children if you die before the children reach 18. A guardian named in the will of a child's parent or current guardian is known as a testamentary guardian. Although you may use separate guardianship nomination papers in some states, you may use your will to name a guardian as well.

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Basic Guardian Types

The person you name to have physical custody of your child is known as the guardian of the person. He will take care of your child's physical needs, such as living arrangements, educational needs and health needs; he will make major decisions for your child in those areas. You can also name a guardian of the estate, who is responsible for your child's finances and property. In some states, a guardian is referred to as a conservator. You may give one person the responsibility of both your child's physical and financial care, but if you want to split the duties between two or more people, you can. For example, if your sibling is great with your children but not good at managing money, you may want to make the sibling responsible for your child's person only.

Will

A will is a document you use to provide directions for property distributions after you die. For example, you may use your will to give your jewelry to your daughter and your car to your son. In your will, you can name the same guardian or guardians for all your children or name a different guardian or guardians for each child; you might name two guardians to act together as both guardians of the person and guardians of the estate for your children. Your will must meet state requirements to be legal and valid; state requirements for a valid will vary, but often include the presence of adult witnesses to your signature on the original will, as well as the signatures of the adult witnesses.

Trustee

You may decide to create a trust for your minor children in which case the financial management of the assets are handled by a trustee. The trustee you name may or may not be the guardian of your children. You can set the rules for the trust in your will, including how often the children are paid and for what the money in the trust may be used.

Considerations

You must consider your will guardian selection carefully. Although the court might not name the guardian in your will as the guardian of your children -- the best interest of your children comes first and the guardian must meet state requirements -- the court will give your selection serious consideration. The guardians you name must be willing to handle all the responsibilities that come with the appointment. Speaking with the proposed guardian before you name her in your will ensures she's ready for the obligation and understands what you want for your children in terms of upbringing.