If you have a child under the age of 18, you need a will that names a legal guardian or guardians in the event of your and the other parent's death. If you don't name a legal guardian before you die, the court will choose who will care for your children, with no input from you—and don't assume that the court will automatically grant custody to aunts, uncles, or even grandparents of the child.
Make no mistake: without specifying a legal guardian for your child in a will, you are leaving this immensely important decision up to strangers.
Also note that legally speaking, the surviving parent has the right to custody if the other dies, so if this is something you don't want, you should plan for this ahead of time as well. Moreover, when drawing up your will, be sure that you and the other parent are on the same page regarding the legal guardian(s) so you can include the same name(s) in both of your wills to avoid later problems. Also, think about naming an alternate guardian should your original choice be incapable of taking on the responsibility for any reason.
While the choice of a child's legal guardian is highly personal, there are some considerations that everyone should think about, and they include the following:
- How many children do you have under the age of majority?
Make sure they are all provided for individually in your will—it sounds basic and obvious, but don't name just one child and assume the court will automatically grant custody of all of them to the same legal guardian. This may be a particular concern if you have a child with special needs.
- Do you want all of your children to live together?
If you want your children to stay together, specify this in your will. In fact, if this factor is more important to you than the legal guardian, say so—that is, if for some reason the court does not approve your choice of guardian or your chosen guardian cannot serve but you would still like your children to stay together with a different guardian as named by the court, make this preference clear in your will.
- Can your chosen guardian handle all of your children?
Especially if you prefer your children to stay together, is your chosen guardian in the position to care for all of your children, emotionally and otherwise? Does he or she have other children as well? How will the families blend?
- Should you consider coguardians?
If your preference is to have your children raised in a two-person home, be sure to name each member of the couple as a coguardian. For example, if you would like your sister and brother-in-law to jointly raise your children, include them both as coguardians.
- How old is your chosen guardian?
Many people immediately think of their own parents for guardians of their children, but consider the age and general health of your chosen guardian and whether he or she will be able to handle the physical demands of raising children. If your children are nearing the age of majority, this may not be as much of a concern, but if you have younger children, it could be a very important consideration.
- Where is your chosen guardian located?
Are they in the same town as you? A few towns over? Another state? How far away are other family members and important people in your children's lives? Will your children have to deal with moving to a new location in addition to the loss of their parent(s)?
- Will your child have to change schools?
Many parents would prefer that their children be able to stay in their same school or at least school district should something happen to them; either way, it's important for you to consider where your child would be attending school while living with his or her new guardian.
- Is your chosen guardian up to the task financially?
As a parent, you know that raising children is expensive, so while ideally, you will have prepared financially for your children ahead of time with estate planning, be sure to consider your chosen guardian's financial resources as well.
- Does your chosen guardian share your personal and religious values?
You probably would prefer a guardian who shares your basic values and goals as a parent so that your children will be raised similarly to the way you would have raised them. If religious doctrine—or alternately, not teaching religious doctrine—is particularly important to you, you should consider this when choosing a guardian.
Think also about whether they can handle the responsibility of raising your child as well as what kind of parent they would be—are they patient, kind, and mature? Do they already get along well with your children?
- Make sure you have a heart-to-heart with the chosen guardian.
Before you make this decision and include a named guardian in your will, sit down and talk with your choice. First and foremost, you want to make sure that he or she will agree to becoming the guardian of your child should anything happen to you, but it is also useful to discuss all the considerations discussed above so you know for certain the answers to those questions.
Part of your job as a parent—now—is to decide who you would want to care for your children in the event of your death. While it may be difficult to find someone who meets all of the criteria, consider the factors on this list carefully to make the best choice possible for your children.
This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.