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Tuesday, July 23, 2024

Naming your child's guardian in your will

Naming your child's guardian in your will


How do you decide who should be your child’s guardian?

As a parent, you find yourself quietly admiring your child’s latest triumph — riding a two-wheeler without training wheels, mastering tennis, crushing the spelling bee, the list is long.

But do you spend enough time thinking about who would raise your child if you were no longer around? Those triumphs you admire are a team effort, the result of a mixture of your child’s talents and your influence, which includes the opportunities you seek out, your financial situation, your belief system and many other traits. If you die, what happens to the life you and your child are carving out together?

Odds are that your child will never fall under the care of your listed guardian — if you are survived by the child’s other parent, custody will fall to them without any special arrangements. However, if a situation in which your child would pass to a guardian were ever to arise, having provisions in place is crucial. For parents with minor children, guardianship provisions are an important part of the estate planning process.

Naming a guardian in your will

To ensure that your wishes are met for who would take over guardianship of your minor children in the event of both parents’ death, you must carefully and deliberately spell out your chosen guardian or guardians in your will or living trust. The first part of adding a guardianship provision to your will is simply listing the names and birthdates of all your children.

You may want to include a provision for future children to ensure that none of your dependents are left out of your will, even if you die before your will is updated to reflect their existence. An estate attorney will usually include language in your will to ensure that future children born and adopted would be included in your guardianship designation.

What happens if you don’t name a guardian?

Many people spend little time thinking about a guardian for their minor children because they assume that role will fall to their family. In fact, some people think they do not need to specifically name a guardian because the child’s closest relative will be appointed.

However, if a guardian for minor children is not appointed in a will, the decision falls to the courts and the legal system may not know the parents’ preference for guardians, giving an opening to a different family member or friend to petition that they would be the best guardian for your child.

While the court will often ultimately select a family member or a close friend for your child’s guardian, not designating a guardian can be easily avoided — so it’s important to specifically name the individual you wish to fulfill this role in your will.

Important considerations when choosing a guardian

The best way to ensure that your child faces a smooth transition is to carefully weigh several factors before you select a guardian. Here are some things to consider in your deliberations:

  1. Age: This is a key factor that is often overlooked. If you admire your parents and enjoyed your own upbringing, naming them as guardians for your child is the easy solution, right? That depends — a lot may have changed since they raised you, and one of the biggest factors is their age. Are they capable of raising your child or do they now have medical concerns or other age-related restrictions that could make the role too difficult?
  2. Location: Where do you want your child raised? If the guardian you appoint lives on the other side of the country, it’s likely your child will be moving. Guardians are seldom in a position where they can move to your child’s location. Who will care for your child while the transition is made? If the distance is significant, you should consider also naming an interim guardian who can accept your child into their home immediately, while moving arrangements are made.
  3. Belief system: Do you know your potential guardian’s views on child discipline, education, school activities, religion, politics and other lifestyle choices? Choosing someone with similar values can bring you peace of mind if you want your child to be raised in an environment reflecting your own moral beliefs and values.
  4. Family situation: What is the specific living situation for your named guardian? Do they already have several children? Will your child fit into a large family environment? Is your potential guardian single? What is their parenting style? What does that mean for your child’s lifestyle? Does the guardian have a stable home life? Do they have adequate financial resources? If not, your child may be facing more chaos at a time when stability would be especially welcome.

After you narrow your list of candidates to those who you believe will be the best fit for your child, you still have a few more steps.

  1. Ask first: Before you name a guardian, have a frank discussion with the preferred individual about how they feel about being a potential guardian for minor children. You want someone who wants to be guardian. After all, the responsibility could be lengthy and life changing. If you have a child with special needs, your guardian should also have the personality, skills and stability to appropriately care for them.
  2. Choose an alternate: Talking to your guardianship candidate will reduce the likelihood that they would refuse the responsibility, but it’s important to note that the person named as the guardian in a will is not legally obligated to serve. Therefore, it’s considered good practice to list at least one alternate guardian.
  3. Select an individual, not a couple: If you’ve determined that your sister and her husband are the perfect match, consider naming only your sister as guardian. You don’t know what might happen in their future lives — divorce, for example — so you want to specifically name the person that best serves your child’s interests. Ask your estate attorney about this step — there may be different guidance depending on the state you reside in and your relationship to both potential guardians in a couple. You can name co-guardians, but it’s recommended to name an individual to avoid complications down the line in the event of divorce or another major event.
  4. Include your selection in your will: Be sure to make your specific arrangements known in a legal document, such as part of your will. The courts typically require that any arrangements are done legally and through the proper channels. Your state might have separate documents where parents can designate a guardian. Check with an estate attorney to see if these documents would be useful, or if you should use a last will and testament to designate a guardian in your state of residence.

Special considerations for divorced couples or blended families

If you are divorced, you may think you have a built-in guardian — your ex — but you should still designate a guardian. Your will might control the guardian designation, for example in a situation where your ex-spouse predeceases you. Likewise, if you have a blended family, you should designate a guardian specifically for your child or children if your current spouse’s children would have a surviving parent or a different guardian designated.

The laws vary in each state, so you’ll need to specifically consult a professional to understand the full extent of your specific family situation before you decide on the best guardian arrangement.

Our take

As your child grows, needs change, as do the circumstances of the guardian you initially selected. For example, your parents may be a great choice now because they are still young and your child is small. But will they be the best choice after they’ve aged another decade and your children are now teenagers?

To avoid a mismatch, review your guardian choice when you review your will. If your choice no longer fits, find another person to fill the role — and be sure to have a frank discussion with them first.


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