How to Make a Will Legally Binding Regarding Custody of Children

By Cindy DeRuyter, J.D.

How to Make a Will Legally Binding Regarding Custody of Children

By Cindy DeRuyter, J.D.

Estate planning documents such as wills and trusts typically direct how you want assets distributed at death and identify the person responsible for handling your affairs. For parents of minor children, there is an even more important reason to create such documents: nominating a guardian to have physical custody of minor children, in the event neither parent is able to care for them. When parents don't take this step and die without estate-planning records, courts must decide who has guardianship over minor children. The individual ultimately awarded custody might not be the person the parents would have chosen for that role. Follow these steps to create a legal will that documents your wishes for guardianship.

Person with wedding ring on hand holding toddler's hand in nature

1. Carefully consider options for guardianship.

It isn't easy to think about someone else caring for your children, but part of the estate-planning process involves planning for worst-case scenarios. Think about the people in your life, and in your children's lives, who could potentially step in as guardians if the need arose.

Many people choose a parent or a sibling, but you could also name a close friend. You can also name contingencies in your will. For example, the document might say “I nominate X as guardian. If X is unable or unwilling to serve, I nominate Y as guardian." Keep in mind that when you nominate a guardian in this paperwork, you state your wishes in a legal document. However, you cannot obligate someone to serve as guardian. Naming one or more contingent guardians can help ensure you have a say over who cares for your children, even if your first choice isn't able to take on or declines that responsibility when you die.

2. Create your will.

When you have decided on the person you want to nominate as guardian, you must include specific language in your will. Laws governing these matters are not uniform across the country, so make sure you understand what your state requires to affect legal guardianship nominations.

If your situation is relatively straightforward, you can prepare your will on your own or use a reputable legal services provider to create one. Alternatively, you can work with a licensed estate-planning or general practice attorney in your state.

3. Follow your state's legal formalities to execute your will.

After you create your will, follow your state's required legal formalities to make the document effective. In most states, at least two competent adults must witness your signature. In some states, people creating wills need three witnesses. You may also need to sign the document in front of a notary public.

4. Make sure someone knows you have created your will.

After signing your paperwork, it is a good idea to make sure the personal representative (also called the executor) named in your will knows where to find the document. You may also choose to let your nominated guardian and any nominated successor or alternate guardians know you named them in the paperwork. Consider having those conversations before you create the document, as you might learn that the person you want to nominate simply is not comfortable assuming legal responsibility for your child.

If you are the parent of a minor child, think carefully about who you would like to look after your children when you die. Including this information in your will, following state laws, and informing those named about your decision can ensure that a plan is in place for your children who require a guardian.

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.