Setting Up Guardianship in a Will

By Laura Payet

Setting Up Guardianship in a Will

By Laura Payet

It's a parent's job to make choices, from the mundane to the momentous: What should your kids eat today? What will they wear? Where will they go to school? What kind of people do you want them to be? One important choice that shouldn't be overlooked is also one many parents shy away from: Who will care for my children if I can't? One of the best things you can do for your children is to select a guardian who will have the legal responsibility to care for them after your death, and the best place to do this is in your will. Some parents hesitate to make a will because thinking about death can be uncomfortable, while others fear the expense of estate planning. But you can make a simple estate plan without breaking the bank, and the cost is worth the peace of mind you'll have knowing your children will be in good hands.

Dad kisses laughing baby's cheek

How to Choose a Guardian

The best options for guardianship are usually family and close, long-term friends. Keep in mind as you consider your decision that your will's guardianship provisions become effective only if both you and your coparent pass away. If one parent dies, the other parent continues to care for your child unless that parent has abandoned the child or a court has terminated their parental rights. Here are some other factors to contemplate:

  • Can the guardian offer your child a stable home environment?
  • Does the guardian know and love your child well? Is your child comfortable with her?
  • If you have multiple children, is there a single guardian who can care for all of them?
  • Will the guardian's age and physical health allow her to care for your children, especially if they are young and energetic or have special needs?
  • Will the guardian's location require your child to relocate, thereby having to adjust to a new environment, new school, and new friends?
  • Will raising your child pose financial hardship for the guardian, despite your efforts to provide for them?
  • Does the guardian share your values regarding religion, education, and other important topics?
  • Do you want to name coguardians or alternate guardians in case your first choice cannot serve?

After you have settled on the person (or people) you wish to act as guardian, have an honest and thorough conversation with her and confirm that she understands and agrees to the responsibility. If your proposed guardian is hesitant, you should choose someone else.

Appointing a Guardian in Your Will

Your will should include a specific provision identifying the guardian you have chosen. Both you and your coparent need separate wills, and each document should specify the same guardian. Because state laws differ about the formalities of executing a will, it's advisable to consult an attorney or online service provider to ensure you follow the correct process. An attorney can also help you decide whether to give the guardian control over your child's assets, whether to appoint a conservator to manage them, or whether to establish a trust for your child's benefit.

Consequences of Not Choosing a Guardian

If you fail to name a guardian, a probate court judge chooses someone for you. But the judge won't know your child or the other adults in your child's life. If you have close family members, they will likely be among the court's first choices, but only you know whether any of those people is likely to raise your child as you would want. If you have no close family or none of your family is in a position to take your child, the court may have no choice but to send him to foster care. Neglecting to name a guardian means giving up the opportunity to avoid this uncertainty and the last chance you have to protect your child.

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.