How to Choose a Guardian for Your Children in Your Will

What does a guardian do?

A guardian of the person cares for your children day to day: where they live, where they go to school, and their medical care. That's what most people mean by "guardian."

Money is a separate job. A child can't manage an inheritance, so someone else must: a court-appointed guardian of the estate, a custodian, or a trustee. California lets a parent nominate a guardian "of the person or estate, or both" (Cal. Prob. Code §1500). Texas lets a court appoint one person for each role when that's in the child's best interest (Tex. Est. Code §1104.001).

When does the guardian in your will take over?

Usually only when no parent is left to raise the child. If you die and your children's other parent is alive and has parental rights, that parent generally keeps custody, even if you're divorced. In Texas, "the surviving parent is the natural guardian" of the children (Tex. Est. Code §1104.051). In Michigan, a parent's choice of guardian takes effect only in listed situations, such as when both parents have died or been found legally incapacitated (MCL 700.5202).

Exceptions are limited. In Michigan, your choice can also take effect if the surviving parent no longer has parental rights. If you have serious concerns about the other parent, talk to a family law attorney. A will alone may not be enough.

Does the court have to follow your choice?

No, but it usually does. The judge has the final say. In Texas, the court must appoint the person you designate unless that person is disqualified, has died, refuses to serve, or "would not serve the minor children's best interests" (Tex. Est. Code §1104.053).

Older children may get a voice:

Rules differ in other states. For how to sign a valid will where you live, see your state's guide, such as Texas, Michigan or California.

How do you choose the right guardian?

Start with the people your children already know and trust. Then ask:

• Do they share your values on religion, education and discipline?
• Are they able? Consider age, health, energy, and their own children.
• Is their home stable? Think about a move to a new town or school.
• Do they want to do it? A reluctant guardian is a poor choice.
• Can they afford it? Don't rule someone out over money. Your estate and life insurance can support your children.

If you name a couple, consider what happens if they separate or one dies. Texas, for example, generally appoints one guardian but allows a husband and wife to serve jointly (Tex. Est. Code §1104.001). Some parents name the person they're closest to, such as their sister, rather than "my sister and her husband."

Name a backup too, in case your first choice dies, becomes ill, or says no when the time comes.

Who should manage the money your children inherit?

If a minor inherits outright, a court may need to appoint a guardian of the estate. That brings court oversight. In California, the guardian must file an accounting one year after appointment and at least every two years after that (Cal. Prob. Code §2620), and the guardianship ends when the child turns 18 (§1600). You have better options:

Sources: Cornell LII, Fla. Stat. §710.106 and §710.123, Cal. Prob. Code §3920.5.

The money manager can be the guardian, but it doesn't have to be. Some parents pick a warm, nearby relative to raise the children and a careful, financially minded one to manage the money. A trust costs more to set up but gives you the most control, and it's worth an attorney's help for a large estate or a child with special needs.

Our free will builder names a guardian and a backup, and asks who should manage money your children inherit. If you leave that blank, your executor chooses. It's free, with no account needed, and your answers stay in your browser.

What if you and your partner disagree?

It's common. Each parent signs their own will, and the choice that usually counts is the one made by the parent who dies last. Michigan says so directly: if both parents have died, the appointment by the parent who died later has priority (MCL 700.5202). If you die together and your wills name different people, a judge may have to choose.

Try to agree on one name. Some ways couples get there:

• Write down what matters most to each of you, then compare candidates against that list.
• Split the roles: one side of the family raises the children, the other manages the money.
• Name one family as guardian and the other as backup.

For stepchildren and blended families, see wills for married couples and blended families.

What happens if you don't name a guardian?

A judge decides, often after relatives ask the court for guardianship. In Texas, if both parents have died and the last parent named no one, the nearest relative in the direct line, such as a grandparent, is entitled to be guardian. If several are equally close, the court chooses based on the child's best interests (Tex. Est. Code §1104.052). That may not be the person you'd have picked. See what happens if you die without a will.

How should you tell people about your choice?

1. Ask first. Give your choice time to think and talk it over with their family.
2. Tell your backup that they're next in line.
3. Write a letter of wishes. A letter of wishes isn't binding, but it can explain your children's routines, your values and why you chose this person.
4. Tell close family so they aren't surprised, and explain your reasons if you can.
5. Review your choice after big changes, such as a move, divorce or new child. You can update it with a codicil or a new will.