Naming a Guardian: The Decision Parents Put Off

Disclaimer: This is educational information, not legal advice. Every situation is unique. Consult with a qualified estate planning attorney before making decisions.

The Quick Answer

If you have children under 18, naming a legal guardian is the single most important thing you can do in your estate plan. A guardian is the person who raises your kids if you and the other parent can't. The only way to make that choice legally binding is to name them in a valid will [2].

Why This Matters So Much

Without a guardian named in a will, the court decides who raises your children [1]. A judge, someone who has never met your family, will appoint a guardian based on statutory priorities and the court's own assessment of what's in the child's best interest [3].

That might work out fine. Or it might not. The court could choose a family member you wouldn't have picked. Relatives could fight each other for custody. The process takes time, during which your children's living situation is uncertain.

More than half of American adults don't have a will [4]. For parents of minor children, that statistic isn't just a financial risk. It's a risk to their children's future.

How Guardian Nomination Works

You name a guardian in your will [2]. If both parents die or become permanently unable to care for their children, the court will look at the guardian nomination in the will and, in most cases, honor it, unless there's a compelling reason not to.

A few important details:

Both parents matter. A guardian nomination typically only takes effect if both parents are unable to care for the children. If one parent dies, the surviving parent retains custody regardless of what the will says.

It's a nomination, not an absolute command. The court has final authority and considers the best interest of the child [1]. But a clear, documented nomination carries significant weight.

Name an alternate. If your first choice can't serve due to their own health, circumstances, or unwillingness, having an alternate named avoids sending the decision back to the court.

How to Choose a Guardian

This is where most parents get stuck. The decision feels enormous, so they postpone it indefinitely. Here's a framework that can help:

Shared values. Would this person raise your children with the values and priorities that matter to you? Think about faith, education, discipline, and daily life.

Willingness and ability. Have you actually asked them? Being honored by the request and being ready to take on three kids are different things. Have an honest conversation.

Stability. Consider their health, financial situation, family size, and location. Not because they need to be perfect, but because raising additional children is a significant commitment.

Age and energy. Grandparents are a common first instinct, but consider whether they'll have the energy and health to raise young children for the next 10 to 15 years.

Relationship with your children. Do your kids know and trust this person? A guardian who already has a relationship with your children makes the transition less traumatic.

Your spouse's perspective. If you're married, this decision needs to be mutual. Talk about it, even if the conversation is hard.

What If You Can't Decide?

Name someone now. You can change it later.

The perfect choice doesn't exist. Every option involves trade-offs. But having someone named, even imperfectly, is dramatically better than leaving it to the court. You can update your will whenever your thinking changes [5].

What About Money?

A guardian raises your children, but that doesn't mean they should manage your children's money. Many parents name a separate person as trustee or custodian to manage the financial assets left to the children. This provides a check and balance: the guardian focuses on caregiving, and the trustee manages the money on the children's behalf [5].

You can also specify in your will or a separate trust how the money should be used, covering education, housing, health care, and other needs.

Do You Need a Lawyer for This?

Technically, you can name a guardian in a will prepared through an online legal service. For most parents in straightforward situations, this works fine.

However, if your situation involves any complexity (a blended family, a difficult relationship with the other parent, or concerns about a family member contesting the nomination) an attorney consultation is a wise investment.

The Bottom Line

This is the one decision in estate planning where procrastination has the highest cost. The paperwork is simple. The real work is the conversation and the decision. Have both, then put it in writing.