Colin Wong
If you have children under the age of 18, you should think about appointing a legal guardian in your will.
Have you thought about who would look after your children if both of their parents were no longer around? It's a difficult thing to consider, but it's one of the most important decisions you can make as a parent.
If the worst were to happen, there could be real uncertainty about who should care for your children, how they should be raised, and whether any financial support would be available. The solution is to address it directly in your will.
Why you should nominate legal guardians
If one parent dies, guardianship typically passes to the surviving parent. But things become more complicated if both parents die, or if the surviving parent is deemed unsuitable.
In those situations, a court must appoint a legal guardian for the child. Anyone with an appropriate relationship can apply—a grandparent, sibling, aunt or uncle, or even a close family friend. When family members disagree about who should take on that role, multiple applications can be filed, leading to conflict, emotional distress, and significant legal costs.
Naming a legal guardian in your will heads a lot of that off. It makes your wishes clear and gives everyone involved somewhere to start.
What does a legal guardian do?
A legal guardian is responsible for raising your children until they turn 18, effectively stepping into the role of parent. That includes making important decisions about their education, healthcare, and day-to-day life.
In most states the role splits in two. A guardian of the person raises the child, and a guardian of the estate looks after any money the child inherits. They can be the same person, though they don’t have to be
Are guardian nominations legally binding?
A guardian nomination in a will carries significant legal weight, but it’s not the sole decider of who would ultimately care for your children if you die. While courts generally honor a parent's expressed wishes if there is no surviving parent, careful consideration is also given to whether nominated guardians are safe, responsible, and capable of caring for children.
If the person you’ve nominated does not wish to accept the responsibility, they can petition the court to decline or have guardianship reassigned. Courts cannot force someone to be a guardian, even if they are appointed in a will. That’s why it pays to speak with your intended guardian in advance, confirm they’re willing to take on the role, and make sure they understand what it entails. Name a second choice too, in case your first says no.
Having the conversation
Before finalizing your choice of guardian, have a thorough conversation with them about your wishes and expectations. Topics worth discussing include:
Living arrangements—will your child move into their home, or would they move into yours?
Education preferences, including any schools or approaches that are important to you
Financial support—will you be setting up a trust for your child, or leaving funds directly to the guardian to assist with care?
Contingency plans in case they're unable to fulfill the role when the time comes
What happens if I haven't appointed a guardian?
If both parents are deceased or unable to care for their children, and no guardian has been named, anyone with an appropriate relationship to the child can petition the court for guardianship. This could be a grandparent, aunt, uncle, sibling, stepparent, or close family friend.
A family court judge will determine who serves as guardian and whether guardianship should be shared between multiple parties. In cases where no suitable guardian can be identified, children may be placed under care of the state.
How to include a guardian nomination in your will
Naming a guardian is straightforward. You can do it when you write your will with EveryWill, and an attorney licensed in your state can also walk you through it.
You can say who you’d like to take your pets at the same time. In law a pet counts as property, so that is a gift in your will rather than a guardianship.
Taking the next step
You can write or update your will online with EveryWill, and it costs you nothing. Charities cover the cost, and you can choose to leave a gift to one if it feels right.
The information provided in this article is for general informational purposes only and does not constitute legal advice. Laws vary by state. For advice specific to your situation, please consult a licensed attorney in your state.