Updated: December 15, 2022
After you pass away and you either have no surviving spouse or your spouse dies at the same time, there may be minor children or other dependents such as disabled or cognitively impaired adults that still need to be cared for and supervised. You will need to choose a legal guardian for them and include this in your will. You may choose multiple guardians such as a married couple or co-guardians, or different guardians for each child if you think they would be able to live apart.
If you have a surviving spouse, they will usually become the children’s guardian. In most states there can be exceptions, such as the court deems them unfit, your current spouse has adopted them, or the child is old enough to request a different guardian — the age varies by state.
In some states they may be known as conservators, but a conservator is technically the person who manages your minor children’s finances. The conservator and guardian could be different people.
You can also name a guardian for any pets in your will, but you can’t leave an animal any gifts directly. You must either set up a pet trust fund or leave any gifts that would be used by your pet to the chosen guardian.
Any guardian chosen must be a person(s) at least 18 years old who can make decisions for your dependents (generally referred to as the “ward”) when they are too young or can’t make decisions for themselves. Guardianship laws can vary by state.
Because of this high level of responsibility, choose guardians carefully. You should make this decision with your spouse/partner if possible, and look for qualities that are most important to you. You may want to write them down or create a checklist to make it easier to assess these qualities in your choices.
Common choices include the non-custodial parent, grandparents — although you must factor their age into the decision, other relatives (older siblings, aunts, uncles, or cousins), family friends, godparents, and/or neighbors. Naming co-guardians can be a problem if one of them is not a blood relative, such as your sister and brother-in-law if they get divorced.
The state can become the guardian if there are no other options.
It may be difficult to make a decision requiring you to take your time to think about it, if you can, or as simple as the person/people you know would step in unasked if you and your spouse were in an accident. Even if you and your spouse/partner disagree or you are torn between potential guardians, talk it over and use your intuition to decide. If your wills conflict or you have no wills and you die at the same time the probate court will make the decision if your child is not old enough to. Talking to the potential candidates can help you finalize the decision.
Once you have chosen your candidate, discuss it with them before designating them in your will.
Schedule time to meet with them privately to make your request.
Once you have decided to choose a person or couple, explain what the process is like, including:
There is no need to cover everything right away. You can take additional time to discuss the details of their guardianship.
Put your thoughts into writing so the guardian will know exactly what you want for your child, including any values you would want them to continue.
Other candidates can be listed as back-up or successors in that section/article of your will. A successor may be needed if the guardian becomes incapacitated or is replaced by the court for other reasons. Without successors the court will assign a guardian based on that state’s guidelines, usually a family member.
Addenda to the will such as power of attorney, medical directives, or a codicil are ways to direct your executor and the court on how to handle matters if you become incapacitated and your dependents-appointed guardian becomes physically or mentally incapacitated without a successor.
If you and your spouse/partner choose different guardians and die at the same time, you do not choose a guardian, or you have no will, the probate court will decide on the best guardian for your children based on the state’s guidelines.
This may be the most important decision in your will if you have minor or disabled children. A guardian is the person(s) who will parent your children and bring them up until they reach the age of majority, usually 18 years old, or no longer need a guardian. You may choose multiple guardians such as a married couple, or different guardians for each child. You cannot bypass an ex-spouse if they are your children’s parent and are fit to care for them.
Mental and physical disability or incapacity may limit your dependent’s ability to take care of themselves, express themselves verbally, earn a living, and/or live independently. If the disability is severe enough to necessitate long-term care, treatments, and other services, you should arrange for a guardian and list them in your will. The qualities of your choice are similar to those of minor children.
A guardianship for physically or mentally disabled or incapacitated persons assures they will have adequate care and someone to facilitate their independence and self-reliance.
A legal guardian will have a broad range of responsibilities similar to those of a parent or caretaker. In your will you may include whatever level of detail you want about how you wish each of these responsibilities to be carried out. However, it is better to include them in an addenda to the will such as power of attorney, a medical directive, or a codicil.
They will have physical custody of your minor child/children and/or other dependents and act as their primary caretaker.
Remain personally acquainted with your child/children or dependent and maintain enough contact to know their abilities, limitations, needs, and opportunities, and physical and mental health.
Make legal decisions on behalf of your child/children and/or dependent(s) such as where to live, where to go to school, if they can play sports, what medical care they receive, etc.
Using inherited money and assets solely for the children’s or dependent’s benefit, including:
Using their own assets, if necessary, to raise your children or care for your dependent.
Taking reasonable care of your children’s or dependent’s personal and property interests.
Accepting full liability for the child’s or dependent’s actions.
If necessary, they can apply for public assistance benefits or public housing and bring a lawsuit on behalf of their ward.
If specifically designated, their guardian may also be their conservator and be responsible for handling the finances and property of your child/children/dependent. It is possible to designate another individual as the conservator to perform these functions.
Because any will goes through the probate process, the guardian may need to provide an accounting of the children’s/dependents’ care by submitting updates to this court. These court updates should:
A guardianship generally ends when the child reaches the age of majority, 18 years old in most states, although the guardianship may be continued or reinstated by the court if there is evidence that your child still requires supervision. Guardianships may be terminated if the child marries or a judge determines that it is no longer necessary or beneficial for your child.
Guardianships for disabled children will continue until the child no longer needs supervision, which may not happen if there are severe disabilities.
Guardianships are automatically terminated if your child dies. In addition, the guardianship may be terminated if the initial guardian did not adequately perform their duties for your child. A new guardian will be appointed.