Choosing who would raise your children if you could not is one of the hardest decisions in estate planning. No parent likes to imagine it. But thinking it through now lets you tell the court who you trust to care for your children.
There is rarely a perfect answer. The goal is to choose someone who will love your children, support them, and guide them if you cannot.
Why this decision matters
If a child has no parent able to care for them, a court appoints a Guardian. The Guardian takes legal responsibility for the child and makes most of the decisions a parent would make, including:
- Where the child lives
- Where the child goes to school
- Health care and medical decisions
- The child’s daily care and upbringing
You name your choice of Guardian in your estate plan, usually in your Will. The court considers your choice carefully. But it makes the final decision, based on what is best for your child.
A Guardian named in your Will serves after your death. If you were alive but unable to care for your children for a time, other documents may be needed. Ask your attorney about this.
Key terms
- Guardian: The person the court appoints to care for a minor child until the child turns 18.
- Conservator: The person the court appoints to manage a minor child’s money and property. The court process is called a Conservatorship. It involves court oversight, reports, and costs.
- Trustee: The person who manages money held in a trust for your child. The Trustee can make distributions from the trust for education, health care, housing, activities, and support. If your trust allows it, the Trustee can also help the Guardian with the costs of raising your child.
- UTMA account: An account held for a child under the Uniform Transfers to Minors Act. A custodian manages it until the child turns 21, or in some cases 25, and then the child receives it outright. It is simpler than a trust, but it offers fewer choices about when and how the child receives the money.
A Conservatorship is usually not needed if what you leave your child goes into a trust or a UTMA account. For more on trusts for children, see this article.
Start with what matters most for your child
Many parents find it easier to start with their child, not with a list of names. What do you most want for your child if you were not there? It often helps to think about the next five years, not the whole of childhood. Children grow, and you can update your plan as your family changes.
The topics below are a sounding board, not a checklist. Not every one will apply to your family.
Where your child would live
Your child may be settled, with good friends and a school they love. If so, you may prefer a Guardian who lives nearby or would move to your area. Staying in a familiar place can give stability at a very hard time. For other families, a move may not matter much, and a fresh start can even help.
Faith and spiritual life
Many parents prefer a Guardian who shares their religious background or values. But the best person to raise your child may not share your faith. In that case, some parents ask a trusted relative or friend to help with their child’s spiritual life. That person might take your child to services, support religious education, or help them mark milestones in your faith.
This is not a legal appointment. Parents usually explain these wishes in a letter to the Guardian.
Parenting style and family values
No one will parent exactly as you would. Still, it helps to know the person you choose shares your outlook on these matters. Think about discipline, education, responsibility, and money. Many parents talk these topics through with the people they are considering.
Some parents also write a letter sharing family history, values, and hopes for their child. This is sometimes called an ethical will. It can mean a great deal to both the Guardian and the child.
Interests and activities
A Guardian does not need to share your child’s interests. What matters more is whether they will support them. Some activities, such as club sports or music programs, take real time for practices, travel, and events. If an activity is important to your child, think about whether the Guardian could keep it going.
Your child’s own needs
Think about your child’s age and stage of life, and any health, behavioral, or developmental needs. Some needs call for a particular kind of caregiver.
Older children may have a strong view about who they would live with. You make the decision, but it helps to think about who your child already trusts.
Keeping siblings together
Sometimes one child has needs that another person is better able to meet. Or one child is especially close to a certain relative. Parents then sometimes consider different Guardians for different children.
Most parents still prefer to keep siblings together. Separate Guardians can mean separate homes, schools, and routines. If you choose different Guardians, think about how they would keep the siblings close.
Thinking about the people you have in mind
Once you know what matters for your child, look at the people who might serve. Personal qualities usually matter most: maturity, patience, good judgment, and emotional stability. So does a real willingness to take on the role.
Money, housing, and work schedules may seem important at first. But your estate plan can often solve those, through life insurance and trusts. The questions below can help you compare the people you are considering.
Their age and health
- Are they able to care for a young child today?
- Would they still be comfortable raising a teenager years from now?
- Would they step aside if their circumstances changed?
A grandparent may be a wonderful choice for a toddler but find the teenage years harder. Naming an alternate Guardian can help.
Their household
- Do they have children, or plan to have more?
- How many children would be in their home if your child joined it?
- Might they soon be caring for aging parents or others?
Think about how your child would fit into the family, and whether the home would give your child the attention they need.
Practical questions
- Would your child stay in your home, or move into theirs?
- Would their home need changes to fit your child?
- Would they need to change their work schedule?
These questions are not meant to rule anyone out. Life insurance, trusts, and other planning can give a Guardian the resources to make it work.
Other choices in your plan
Beyond who serves, a few choices shape how the roles fit together. Your attorney can help you decide what works for your family.
The same person, or different people, as Guardian and Trustee
Some parents choose one person to be both Guardian and Trustee. Others split the roles. Then the Guardian can focus on raising your child, and the Trustee can focus on managing the money. Splitting the roles also adds a check, since the Trustee approves distributions that may support the Guardian’s household.
If you split the roles, choose people who will communicate well and work together for your child.
A couple as Co-Guardians
Naming a couple as Co-Guardians lets two adults share the work. If one later cannot serve, the other can carry on without another move for your child.
Think about how well you know both people. You may know your sibling well but their spouse less so. Think, too, about what would happen if the couple separated. And if they have children, consider how your child would fit in and feel included. Open conversations now can help with all of this.
If you name one person instead, they may later marry someone you have never met. That is not a reason to rule them out, but it is worth thinking about.
An adult child as Guardian for younger siblings
An older adult child may already have a strong bond with the younger children and want to keep the family together. But raising siblings can change an adult child’s life, including school, work, and where they live. Think about whether they have the maturity and willingness to do it. Think, too, about whether the younger children would accept them in a parent’s role.
Some parents ease the load by adding support in their plan, such as help with housing or extra distributions from the trust.
Alternate Guardians
Circumstances change. The person you name today may later move, become ill, or be unable to serve. Naming one or more alternate Guardians gives the court more guidance about people you trust.
Talk with the people you are considering
Before naming someone, have an honest conversation with them. Being a Guardian is a big responsibility. Give them time to think about it, ask questions, and consider how it would affect their own family.
This is also a chance to share your hopes for your child and your family’s values. You can also talk through practical matters, such as where your child would live and go to school.
Want to read more?
These articles are optional.
- Choosing the people who carry out your plan: Including Trustees. See this article.
- Setting the rules for a trust: How a trust for your child can work. See this article.
- Outright or in a trust: How your children receive what you leave them. See this article.
- Questionnaire help: If you are filling in the questionnaire, see the help for the Family Information and Fiduciary Choices pages.
- Glossary: Common estate planning terms. See this article.