Establishing guardianship in a will

If you have a child under the age of 18, you should have a will to name a legal guardian of your child in the event of your death. Read on for tips on how to make this happen.

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by Michelle Kaminsky, Esq.
updated May 11, 2023 ·  4min read

Establishing guardianship in a will is one of the best things a parent can do for his or her child. Why is it so important?

Because if something happens to you, you would surely prefer to choose who assumes legal guardianship of your child instead of letting the courts decide.

While it isn’t automatic that a court will approve your selection regarding guardianship of a minor, it is highly likely, especially if you take the time to explain your reasoning to the court. This last part is particularly important if you don’t want custody of your child to go to your ex-spouse since, generally, if a child’s other parent survives, guardianship passes to the other parent.

What follows is a brief discussion of what factors to consider when selecting a legal guardian for a child as well as how to name one in your last will and testament.

Factors to consider when deciding on guardianship of a child

Choosing the guardian for your child is an extremely personal decision, but there are some common factors that parents should consider when coming to this decision. Some things to think about include the following:

  • Personal and religious values: You most likely would prefer that your child is raised in a manner similar to how you would have raised him or her, which means that the more your chosen guardian’s personal beliefs and goals are in line with yours, the better.
  • Keeping children together: If you have more than one child and are determined to keep them together, you must consider this in the choice of guardian and specify as such in your last will. Can your chosen guardian handle all of your children, emotionally and otherwise, and will the families blend well if the guardian already has children of his or her own?
  • Financial situation: While ideally you will have provided financially for your children through estate planning, it is a good idea to consider the financial position of a potential guardian when making your decision. Some parents choose to name someone else besides the chosen guardian to handle a child's inheritance; this is to prevent one person from having control over everything regarding the child, so this may be something else to consider regarding finances.
  • Special needs: If you have a child with special needs, can your chosen guardian handle the care of your child, both financially and emotionally?
  • Age of potential guardians: Although grandparents are often the first choice for parents in choosing guardians, be sure to consider the age and general health of grandparents when deciding. Will they be able to handle the physical demands of the guardianship of minor, especially if your children are still quite young?
  • Location of potential guardians: Will your child have to move far away from your home and everyone they know? How far away will other family members and important people in your child’s life be? Will your child have to change schools?

After choosing your guardian, although not legally required, it is highly recommended that you have a frank discussion with the person you would like to select as the guardian of your child to make sure he or she is willing and able to take on this esteemed role.

How to establish legal guardianship in a last will

Establishing guardianship in a will can be achieved by including the information in the document, which then must be properly executed according to state law (signed, witnessed, etc.). You may also be interested in using guardianship forms, which provide a template for you to include this information in a last will, and you can also include a supplementary document explaining your rationale if you so choose.

Note that if your child’s other parent is still alive, you should make sure he or she also names the same guardian in his or her last will and testament in the event of both of your deaths. Consider, as well, naming an alternate legal guardian should your first choice be unable to take on the responsibility for any reason.

While it may not be a pleasant subject to think about, once you have included your choice for child guardianship in your last will, you will have greater peace of mind knowing that your children will be well taken care of in the event of your death.

After all, providing for your children is your most important duty as a parent, and part of that is making sure they are in good hands no matter what happens.

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Michelle Kaminsky, Esq.

About the Author

Michelle Kaminsky, Esq.

Freelance writer and editor Michelle Kaminsky, Esq. has been working with LegalZoom since 2004. She earned a Juris Docto… Read more

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.