Naming a Guardian for Minors

Senior guardians over minor children

Grandparents raising grandchildren – Many grandparents today have taken on full legal custody of their grandchildren, a shift from decades past when this arrangement was less common or formalized.

When a child's parents cannot raise them, a grandparent's will can guide the court in appointing a guardian, even if the will itself isn't legally binding for that decision. For any minor children, a will should name a guardian for both the child's person and their property, plus at least one alternate.

In a will, "child" means the natural or adopted child of the person writing the will.

If one parent is still living and in the same household as the child, they automatically become the guardian.

In a divorce, the parent with legal custody should designate a guardian in their will. If they name someone other than the other parent, the court may not follow that choice. When a custodial parent dies, the non-custodial parent has first claim to guardianship unless the court finds them unfit.

The court will likely need to approve any guardian you name in your will—unless that guardian is the surviving parent in the same household. Even so, naming a guardian in your will serves an important purpose: it tells the court what you wanted and can prevent family disputes over who should raise your children.

Appointing two guardians

You can appoint two guardians if you wish—one to care for the child and one (often someone with financial experience) to manage their property. Before doing this, think carefully about whether it makes sense to leave money or property directly to young children at all.

Guardianship is a rigid way to manage money. It requires regular court filings and accounting, and guardians have limited flexibility in how they use the funds.

When guardianship ends

Guardianship ends when a child turns 18 (or 21 in some states). After that, any property left to the child belongs entirely to them. Many people know that dying without a will can be problematic—it may leave half or more of their assets to minor children. But a will can create the same problem if it leaves property directly to minors, which often happens when both parents die young.

With or without a will, those children will reach adulthood. At that point, the guardian must hand over the money or property.

Using a trust instead

If you want to leave significant assets to your children (rather than to a surviving spouse), a trust is usually the better choice. A trust can keep money out of your children's direct control until they reach an age where they're ready to handle it.

A surviving parent can also benefit from a trust, a topic we'll cover later.

One more thing: guardians are not required to use their own money to support the children, and usually cannot. Some public benefits may be available, but don't rely on them. Instead, make sure there are enough funds—through life insurance or savings—to actually care for your children if something happens to you.

F.Y.I. Guardians are not legally obligated to support the decedent’s children out of their own pockets, and might not be able to, anyway. Public welfare benefits might be available, but it is unwise to rely on them as a first option. So adequate funds, through life insurance or otherwise, should be available to care for your kids.