Guardian vs. Custodian of a Minor Child in a Will

By Christine Funk, J.D.

Guardian vs. Custodian of a Minor Child in a Will

By Christine Funk, J.D.

When people have minor children, it is a good idea to make some plans for them in the unlikely event both parents die while the children are minors. If parents fail to plan, the courts will make those decisions after the death of the parents. However, if parents do plan ahead, they have the opportunity to choose both a guardian and a custodian for the children. In many cases, but by no means all cases, the guardian and the custodian are the same person.

Parents tickling children on couch

Understanding the Role and Responsibility of a Guardian

A guardian acts in the place of the parents if the parents die. Guardians raise the children and make all parenting type decisions, which may include:

  • The religion the children are raised in, if any
  • The summer camps the children attend
  • The schools the children attend
  • Afterschool activities
  • Medical and dental care decisions

Parents often expect a guardian to eventually adopt the children, thus transferring them from being wards of the guardian to being the children of the adoptive parent. However, adoption is not required.

Understanding the Role and Responsibility of a Custodian

The custodian, sometimes called a property guardian, is in charge of a minor child's inheritance until they reach a certain age. The will can dictate this age. Alternatively, if the money is managed under the Uniform Transfer to Minors Act (UTMA), in most states the UTMA custodianship ends when the child turns 21.

Typically, the parents' property, cash, investments, retirement accounts, and life insurance policies are passed on to the children. However, minor children are not legally permitted to have direct access to these funds. Instead, the custodian is charged with using this money to support the children. This money can be used to purchase necessities such as a place to live, utilities, and food for the children. However, it can also be used for swim lessons, summer camp, and private schools.

There is no set list of items that this money may or may not cover. Instead, the law requires that the custodian manage the inheritance with the beneficiary's best interests in mind. Sometimes a parent dictates some of the spending in their will, such as dictating a specific private school. Other times, the will is silent as to how to spend the money.

When the Courts Choose a Guardian and a Custodian

If no guardian or custodian has been designated or if the designated guardian and/or custodian cannot fulfill the duties of the post for any reason, the courts will determine who will raise the children and manage the money. Courts consider each family's situation to determine who might be the best person or people for the jobs. Courts consider various factors, including:

  • The geographical location of potential guardians
  • Their employment
  • Mental and physical health
  • Their ability and willingness to continue to connect the children to both sides of their extended family

Planning Ahead

In many ways, every family is different. However, all families share a need for children to be raised to adulthood and their money to be managed properly. Guardians and custodians fill these roles. Parents should take the time to choose guardians and custodians. They should also commit these choices to writing in a will—whether done on their own, with an attorney, or with the help of an online legal service provider—to ensure their choices are both known and respected in the unlikely event of their death while the children remain underage.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.