Why Every New Parent Needs a Will and Guardian Plan

Having a child changes what a will is for. It is no longer only about property. It is about who would raise your child if you could not. This article covers the first steps. For how the court process works, see Guardianship: Naming Someone to Care for Minor Children.

What happens if we do not name a guardian?

If both parents die, a court chooses. The U.S. Army’s legal assistance office explains that the court appoints a guardian to care for the children, and that the parents’ choice in a will is not absolutely binding but is highly persuasive. Without a nomination, the court has less to go on. If one parent survives, WillMaker notes that the named guardian usually matters only if both parents die close together.

What are the first steps?

1. Name a guardian, and a backup, in your will. A law firm’s checklist recommends at least one successor, in case your first choice cannot serve because of illness or a move.

2. Name the same person in both parents’ wills. WillMaker says that if each parent names a different guardian and both die, there could be a conflict.

3. Ask the person first. A nomination should not be a surprise, and you need to know they are willing.

4. Check your beneficiary designations. Law firms advise against naming a minor child directly on life insurance, retirement accounts, or payable-on-death accounts. If a minor receives assets directly, a court may need to appoint someone to manage them. Naming a trust or using a custodial arrangement for minors can avoid that step. The Army guide notes that life insurance can fund a trust for children named in a will. See Life Insurance and Final Expense Insurance.

5. Decide who would manage the money. The person who raises the child and the person who manages the money can be different people. Naming different people can add oversight, one law firm notes, as long as they can communicate.

Does it have to be complicated?

No. A simple will with a guardian is much better than none. Rules vary by state, so an attorney licensed in your state can confirm what applies. Also consider a health care proxy for yourselves. See Advance Directives, Living Wills, and Health Care Proxies.

Why a court, and not our wishes?

The court’s duty runs to the child. A guidebook published by Nolo explains that a named guardian cannot serve until a court approves, and that the judge can choose someone else if it is in the child’s best interests. Some states work differently: the Alaska Court System says the guardian named in the will of the last parent to die has the right to act, with a court hearing if someone objects. In every state, courts give a parent’s nomination serious consideration.

What if our circumstances change?

Review your will when something changes: a move, a new child, a divorce, or a guardian’s health or location. A guardian who made sense when your child was a baby may not be right years later.

What should we do next?

Pick a guardian and a backup, talk to them, and book an appointment with an attorney. Then review your insurance and account beneficiaries.

This is general educational information, not legal advice. Laws about wills, guardianship, and powers of attorney vary by state, so an attorney licensed in your state can confirm what applies to you.