Choosing a legal guardian means that, if you die unexpectedly before your children turn 18 — and we very much hope you won’t — you can be confident that they’ll be raised by someone you trust.
If you don’t name a legal guardian, someone will be chosen by the courts.
As with all things estate planning, choosing a legal guardian can get a bit complicated. Here’s everything you need to know.
First things first: the terminology
There are two kinds of guardian:
Legal guardian: This is the person responsible for looking after a child: clothing them, feeding them, getting them to school on time — all that good stuff.
They have a lot of the same responsibilities as a parent.
Fiduciary guardian: This person is responsible for managing the financial assets left to your kids in your will.
They’re often the same person. But in this article, we’re going to be focusing on legal guardianship — that is, appointing someone in your will to take care of your kids if you die unexpectedly.
In this article
To name a legal guardian for your kids, you just have to include a statement in your will
Somewhere in your will, you should include the names of your children, along with the name and of the person you’d like to be their legal guardian.
You can, of course, also use your will to make financial provisions for your children.
There’s a lot to consider when naming a guardian
At a minimum, a legal guardian needs the time, energy and physical fitness to raise your children.
But there’s a whole lot more to consider besides that.
Firstly, there are legal requirements
The legal requirements for appointing a guardian vary state by state.
Each state has its own requirements concerning age and location. There can also be some variation between cities.
Choosing a suitable guardian
Ticking the legal boxes is one thing, but there’s a lot to consider besides that when naming a legal guardian. Think about their:
- Age and energy: Raising kids ain’t easy. So make sure you choose someone who’s physically and emotionally up to the job.
It’s also worth thinking about the person’s age. If you choose someone older than you — your parents, for example — there’s always the possibility they’ll die before you do, in which case you’d need to make sure you update your will.
- Lifestyle: Think about whether the person’s lifestyle fits with the way you’d like your children to be brought up.
For example, if they travel a lot, for long periods of time, how would your children be looked after while they’re away?
Or maybe they have kids of their own? How would your children fit into that set-up?
- Values and “parenting” style: You can use your will to express your wishes for your child’s upbringing — where they live, what kind of education they’ll have, and so on. But some aspects of parenting are a little more abstract and harder to pin down.
Make sure you and the legal guardian you name in your will share similar “parenting values”. How do you believe children should be brought up? How strict is your approach to parenting? How would you want your children to be taught about the importance of money, and how early is too early to give children responsibilities?
It’s impossible to address all these sorts of questions, but you can get a sense of whether someone broadly shares your values and approach.
- Location: Although some states require a child’s legal guardian to live in the same state, most don’t. Would you be comfortable with the idea of your children moving to a different state?
And if they stayed in the same state, does your named legal guardian live far away enough that your children would have to change schools?
Many probate courts will take a legal guardian’s location into account when deciding whether to approve the person you nominate in your will.
- Finances: It’s expensive to raise children. Would the person you name as legal guardian in your will have the financial stability to fund your children’s upbringing?
You can use your estate plan to support your children financially, but it’s always good to know that, if you were to die, your kids’ legal guardian would be able to afford to raise them.
- Religious beliefs: If your faith is important to you, think about the religious upbringing you’d want for your children. Would their legal guardian be able to support that?
Legal guardians have many of the same responsibilities parents do
The exact legal responsibilities of a guardian vary from state to state. But, for the most part, they cover things like:
- Providing basic necessities — food, shelter, clothing
- Medical care — both physical and psychological
- Education — making sure the child is enrolled in and attending school, etc.
Legal guardians have to sign an agreement promising to provide these things. In some states, legal guardians have to go through training or pass a test to show they understand their responsibilities as a guardian.
In some instances, the legal guardian has to get permission from the court to do things like moving the child to a different state. Again, these requirements vary from state to state.
The person you name can choose not be a legal guardian when the time comes
Even if you do agree with the person you name in your will that they’ll become the legal guardian of your children should you die, they’re not legally obliged to do it.
If the time comes, they can still decide not to take on the responsibility. In these cases, the opportunity would pass to any alternate legal guardians you name. If there aren’t any, or none of them are willing to take it on, the court will choose a legal guardian.
In many states, children over a certain age (usually 14, sometimes 12) can request a particular legal guardian.
Legal guardians have a number of rights
The rights of legal guardians vary between states, but they’re usually similar to those of a parent.
They can typically make legal decisions for the child, including where the child lives (although they’ll sometimes need to notify the court of this), and where the child goes to school.
You can use your will to specify what you’d like to happen, but these aren’t legally binding once a legal guardian is in place.
You can name multiple “back-up” legal guardians
You can name more than one person as a legal guardian.
You can also name backup legal guardians. If your first-choice legal guardian(s) dies, refuses, or is too ill to take on the responsibility, the court will look to appoint your backup.
Your estate plan can help cover day-to-day living costs for your kids so your legal guardians don’t have to worry about it
It’s a good idea to name a legal guardian in your will who has the financial stability to raise your kids. But you might, when making your will, feel uncomfortable with the idea of potentially adding a lot of extra costs to that person’s life.
You can use your estate plan to help with these costs, via:
- Your will: You could use your will to specify certain assets — or an amount of cash — to be used for your children’s day-to-day living expenses, if you were to die before they turned 18.
- A trust: Trusts are separate legal entities set up to manage your assets. Trusts have “beneficiaries” — the people who will benefit from the assets in the will.
Trusts can be managed with very specific instructions. For example, you could allow a certain amount of money to be transferred each month from the trust to your appointed legal guardian to cover the costs of raising your children, or have it set aside only for education.
The “trustee” — the person in charge of managing the trust — would be responsible for making sure the money was distributed properly.
You can also use your will to create a “testamentary trust”, which is a trust that’s created when you die.
- Transfer on Death (TOD) provisions: Many financial assets — bank accounts, insurance policies, etc — allow “transfer on death” provisions. This means you name a “beneficiary”, and then the asset passes to them when you die.
It’s possible to name your chosen legal guardian as the beneficiary of your financial assets, so they have enough money to cover raising your children.
Just remember to change the beneficiary to your children once they turn 18!
Talk things through with your planned legal guardian before writing your will
Legal guardianship is complex — legally and emotionally!
Finding the right legal guardian for your kids takes a careful understanding of what you value as a parent, and the values of your planned legal guardian(s).
So talk it through. Make sure they understand the rights and responsibilities they would have, and your hopes and expectations for your children’s future.
If you change your mind about your legal guardian, remember to update your will
Many of the things included in your will can change over time, including the legal guardians you name.
For example, they may move to the other side of the country, become seriously ill, or even pass away themselves.
If this happens, it’s a good idea to update your will. And the easiest way to update your will is often simply writing a new one.