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5. Nominating Guardians in a Will

One of the most important considerations in drafting your last will is determining who will serve as guardian for your minor children. Typically, if one parent dies, the surviving parent remains responsible for the children. However, complications arise if both parents die simultaneously or if one parent has remarried. Unless you name guardians for your minor children in your last will, the court decides who will be given custody after your death.

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If your spouse is legally the mother or father of your child, you typically name your spouse as guardian in your last will. If you choose to nominate someone else, the court will consider your spouse’s parental rights, your wishes, and other relevant factors when appointing a guardian. For example, if you have remarried and want your current spouse (and not the natural parent of the child) to be the guardian, you may want to explain why you think your current spouse would be a better guardian. LegalZoom gives you the option of writing these instructions in its Special Directives Clause.

Guardians are responsible for a child's health, education, and other daily needs. They are also responsible for managing a child's property (unless a testamentary trust or other trust has been created for the child – see "Creating a Testamentary Trust in Your Will".)

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