Setting Up Guardianship in a Will

By Maggie Lourdes

Probate courts appoint legal guardians to care for minor children if their parents die. A guardian ensures a child receives such things as housing, food, education and health care until he reaches the age of 18. Parents can nominate individuals to serve as guardians in their wills. Generally, judges follows parents' wishes by awarding guardianship to the parents' nominees. If a nominee is unable to serve, the court chooses another capable person to act. State laws regarding guardianship may vary.

Special Will Provision

Wills generally have specific paragraphs addressing guardianship nominations. Generally, guardianship provisions only have effect if both parents die. If a child has one living parent, that parent is in charge of the child's care. Alternate guardians may also be nominated in case parents' first choices cannot serve. For example, John and Jane Doe nominate Jane's brother, Bob, as guardian of their children and, in case he cannot act, John's sister Sarah, as alternate guardian.

Guardianship Considerations

Parents should examine many factors when nominating guardians for their children. The age, health and location of a guardian are important considerations. For example, if a guardian lives out-of-state, a child may need to relocate, change schools and make new friends after the trauma of losing a parent. Personal habits such as religion and lifestyle should be examined. Parents should choose a competent person who is capable of maintaining a stable environment for the child.

Protect your loved ones. Start My Estate Plan

Consulting the Nominee

Parents should consult with potential guardians before nominating them in wills. Guardians should understand the responsibility of raising children. They should consider the impact of bringing a new child into their homes. Parents and guardians should have a good understanding concerning the goals for the children and how they would be achieved. If a person is hesitant about the duties of guardianship, a parent should consider an alternate choice.

Power Over Assets

Guardians generally do not have control over a minor child's money. Conservators are typically appointed through an independent order to oversee a child's assets. Parents also may nominate conservators in their wills. A conservator may be the same or a different person than the guardian. If separate people are selected, parents should consider how the individuals would work together for the betterment of the child. Trusts can also be set up to bypass probate and place a trustee in charge of a minor child's inheritance.

Protect your loved ones. Start My Estate Plan
Differences Between a Trustee & a Guardian in New York


Related articles

How to Word a Will When You Have a Handicapped Child

Parents who have special needs children not only have to care for the child during their lifetime, the parents must also ensure that these children receive care after they die. For many parents, this can mean making certain that the child has enough funds to cover medical care for his entire life. While the task may seem daunting, a properly worded will can ensure that your child gets the care he needs after you are gone. Further, the act of writing your will can help you with the financial planning aspect of your child's care by helping you think about what funds your child will need for long-term care.

The Rights & Responsibilities of a Temporary Guardian in Arkansas

A temporary guardian is a person appointed by the court to play the legal role of a child's parent, when parents are unable to do so. A court may appoint a temporary guardian when a parent is incarcerated, temporarily too ill to care for the child or after a parent dies. In Arkansas, guardians have many of the same rights and responsibilities of parents. The guardian must relinquish the child to the parent at the end of the term of guardianship if the order of guardianship orders her to do so.

Legal Guardianship in Nebraska

Nebraska law recognizes that certain people cannot take care of themselves because of their age or mental condition. For example, elderly people who have diseases, such as dementia, and minor children need help caring for their physical and financial needs. Thus, Nebraska has a system whereby courts appoint guardians and conservators for children or incompetent adults to take care of them physically and manage their finances until they become capable of caring for their own needs, if ever. If you have minor children, you can nominate such a guardian as part of your will.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help. Wills & Trusts

Related articles

Custody of a Minor Child When the Natural Parents Die

Technically, the issue of custody disappears when a child’s parents die. Another adult will take over and raise the ...

Appointing a Guardian for a Minor Child in New York

Parents, relatives or social services agencies face the emotionally challenging decision of guardianship of a minor ...

Can an Under Age Child Inherit a Car Without a Will?

A parent with young children must address numerous estate-planning questions, including naming a guardian to raise the ...

Guardian Vs. Custodian of a Minor Child in a Will

A guardian and custodian become necessary in the event a child's parents pass away, leaving assets and an inheritance ...

Browse by category
Ready to Begin? GET STARTED