How To

How To Decide Guardianship In A Will

Jun-30 2021

What is guardianship?

Guardianship is usually added to a will of people that have children under the age of 18 who are minors. Guardianship is added to the will in case of emergencies, which no one likes to think about but need to be considered. By declaring guardianship in a will, parents get to decide who takes responsibility for the children, instead of the court.

If one of the parents outlives the other one, then the guardianship automatically transfers to the one parent. In case of the passing of both parents, the assigned person takes over complete guardianship of the children. Until the children turn 18, the guardian takes responsibility for their health, welfare, education and basic needs like shelter, food, etc. The guardian is not obligated to financially support the child, and therefore the executor of the will should fairly assign financial assets to the guardian. You can read more about the duties of an executor from EstateExec here.

If you don't name a legal guardian in your will and your child is left without parents, the court determines who takes over guardianship of your child. This decision is typically made in one of two ways:

  1. Someone steps forward and offers to care for the child. Then, the court determines if this arrangement is acceptable.

  2. The court appoints a family member (who must agree to the setup), regardless of how positive your and your child's relationship is with them. This often defaults to a surviving parent, but there are exceptions.

If a child 14 or older (in most states) has a preference and no legal guardian has been chosen, the courts tend to err on the side of the child's preference, if possible. They may also consider the child's wishes even if they conflict with your will.

In cases where no one agrees to or is deemed capable of guardianship of your child, your child may be placed in foster care.

9 Steps For Choosing a Legal Guardian for Your Child

Choosing a legal guardian isn't easy, but it's important and should be done as early as possible. No matter how young and healthy you are, accidents and unexpected illnesses can occur at any time.

When deciding who your child's guardian should be, here are nine things to keep in mind.

1. Whether the Courts Will Approve

Courts can opt to refuse guardianship of a child, even if a guardian is named in your will. Typically, the courts require the guardian to:

  • Be a legal adult

  • Have the time to raise a child

  • Be physically capable of parenting

  • Have the income to effectively raise a child, whether on their own or in conjunction with money you leave specifically for your child's care

Many of these requirements have gray areas. Therefore, including a letter explaining how you chose your child's guardian can be helpful (more on that later).

2. Parenting Skills

If your potential guardian has children, consider how you feel about their parenting skills; if they don't have children, consider how they interact with and talk about children in general. 

You could also consider any training they may have in working with children, such as if they work in education, psychology, or child welfare. While no degree or work history makes someone a perfect parent, these experiences may help.

3. Beliefs

When it comes to religious, moral, or ethical beliefs you want your child to be raised with, ensure your potential guardian's beliefs line up with those. If someone is otherwise an ideal candidate and you fully trust them to keep their promises, consider working out an arrangement in writing.

4. Financial Stability and Situation

Consider the finances of your child's potential legal guardian. You want to ensure your child is in a stable situation and that caring for your child won't put the guardian in a rough spot. 

To be clear: Wealthy people aren't inherently great parents, and people who aren't wealthy aren't inherently terrible parents. 

Regardless of a legal guardian's financial situation, consider creating a trust for your child, if possible, as it can help offset costs.

5. Current Location and Living Situation

When a child loses their parents, they're already going through a hard time; it may be even harder if they must move to a new school, state, or country.

If your child is on a 504 plan or Individual Education Plan (IEP), discuss it with your chosen guardian. Make sure the details and requirements of the plan are clear.

If your preferred legal guardian lives elsewhere, it's worth discussing if they're willing and able to move to where your child is. For many, this is impossible. So, consider a transition plan. Is there someone nearby with whom your child could stay through the end of the school year?

You may name a legal guardian who lives in a different country, even if they aren't a U.S. citizen, so long as they meet all other requirements. Most lawyers recommend naming an interim or backup guardian, as inter-country guardianship of a child can sometimes take a while. 

Additionally, while plenty of people have been happily raised in small homes, consider if the potential guardian's home is large enough to support an additional person.

6. Age, Health, and Stage of Life

Though it may seem crass to factor in how old or healthy an otherwise qualified guardian is, you should consider whether you want to risk your child losing another parent-like figure while they're still young.

Additionally, if your chosen person is an empty nester or retiree who loves their current lifestyle, they may not want to rear children at the stage of life they're in. They may say "yes" because they feel obligated, but this doesn't set them or your child up for success.

7. Your Children's Wishes

When your child is old enough, talk with them about what legal guardians are and who they would want to care for them if you were gone. Consider giving them a few options of people you're comfortable with and with whom you've already spoken.

Most states let kids have a say in guardianship starting at age 14, regardless of what your will says. So, having this conversation before that age may be wise.

8. Will They Take Your Pets?

Your child’s guardian isn't required to take your pets. But losing a beloved pet may cause additional trauma for a child.

If a guardian can't take your pets, try to find another person who can take them and will allow your child to visit them.

9. If They Want to Be a Guardian for All Your Children—or at All

Before asking someone to be a guardian for your child, no matter how perfect they'd be, ask yourself: Would they agree to it out of obligation? Or would they agree because they want to be your child's legal guardian?

Additionally, it's worth considering if this person would want to be a guardian for all your children. While you don't need the same guardian for all your children, if you want your children to stay together, think about whether your preferred guardian could or would take them all.

How To Make Someone the Legal Guardian of Your Children

When legally assigning a guardian it is important to mention the chosen person in either your will or official guardianship documents. When writing your will, make sure to mention all of the guardians' information and their relationship to you. To make sure you do not miss anything important, it is the easiest to use services with already drafted questions for you to answer. Make sure that if the other parent is alive, they mention the same guardian in their will as well. You can assign a co-guardian, but that often ends in legal problems when the guardians split. Here are a few general steps that always apply in the process:

  1. Ask your chosen guardian if they'd be willing to take on this responsibility. You should also speak to a backup guardian, in case your initial choice declines. Don't assume anyone would be willing or able to do this.

  2. Put a clause in your will regarding who you want as your child's guardian(s).*

  3. Include an explanation letter in your will explaining your choices.

  4. Officialize your will by having the required people (varies by state) sign it.

*If there is someone you don't want to get guardianship of your child, include this as well. These are not easy questions to ponder but well worth the time in order to make measured and informed decisions. Planning for the unthinkable means less time worrying that you haven't ensured a bright future for your family. And always include an attorney in your process when you can't find the answers elsewhere.

The Explanation Letter

Step three recommends including a letter explaining how you chose a guardian for your child. While not a requirement, it's advisable.

This letter could help the court better understand why you chose a person (or are refusing custody to a person) based on the criteria above. This includes expressing your child's preferences, even if they're under the age of 14. If your child is very young (i.e. can’t talk yet), discuss how positive their relationship is with the chosen guardian.

Explain why the person is, in your opinion, the best option for your child (or why you believe a person's guardianship could be harmful). If you have reason to believe a court may hesitate to agree to your chosen legal guardian, do your best to dispel those fears in detail.

Making Changes to Legal Guardianship

You may need to change your legal guardian. Thankfully, this process isn't too different from how you added them initially: You need to rewrite your will. 

Additional documents are allowed instead of a rewrite but going that route can make the courts or your family question if the information is replacing to adding to the former will. 

Rewriting a will to change your choice of your child's legal guardian upon your death (or anything else) looks the same as writing your will for the first time. 

The only difference is it needs to state this new will invalidates all previous wills. Triple check the dates on your will before finalizing things.

Many believe that destroying your older wills renders them invalid, but if there are additional copies out there, they can easily be brought into court. 

Don't forget to remove your old version of your will from your digital legacy service and replace it with the new one.

Without this testimony or correct dates in your will, family may be able to argue the older version could still be valid—not a risk worth taking, particularly when legal guardianship of your child is involved.

Assign Guardianship of Your Child Today

Nobody likes to think about it, but death is an inevitable part of life. It can be expected or unpredictable.

As a parent, you need to make sure your child is well cared for, especially if you pass away. Choosing a legal guardian for your child in case of your death as soon as possible ensures they are in good hands. 

If you’re ready to start the process, use our will creator to make your wishes known and designate your child’s legal guardian today.