Choosing a Guardian for Estate Planning

Parent Q&A

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  • My sister has a middle schooler with some special needs, and the good news is she has two close friends who are willing to raise her son jointly as his guardians. (FWIW, I'm not the guardian b/c a cross-country move from NY would be too disruptive for him and these friends have known her son all his life.) The rub is that her husband has been dragging his feet for years to do any estate planning and appoint guardians, even though he is apparently OK with the guardian plan and does not want his family to raise their son. I saw her recently and reiterated that they really need to get this done, and from her response, it doesn't sound as if she thinks much progress will be made. Is there anything she can do independently to build in some safeguards until her husband finally agrees to move forward? Can she do her own will without her husband to at least document her preference for guardians? Other ideas? Thank you BPN!  

    Under California law parents need to nominate a guardian in a will. In the unlikely and tragic event that both parents die simultaneously, if one of them has nominated a guardian in a will, that choice will be respected. Your relative may just want to do her own will with guardian nomination, but should check out the law in New York state.

    If the husband is on the same page as she is but just dragging his feet in terms of getting it documented, couldn't she make an appointment with an estate planning lawyer, get all the paperwork done, and then present the documents to him to sign? His signatures will need to be notarized but there are notaries who will come to your house, if that's what it takes.  My husband was a pain about this process too - I think there are some people who feel like making a will is the first step towards death or if they don't make a will, they won't die.  

    It seems to me that guardians are only needed if both of the parents are dead. If she creates a will naming the friends as guardians and she and her husband die together, say in a car crash, and the husband doesn't have an estate plan, guardianship should follow whatever she specifies. Same goes if he predeceases her. The only problem come up if she predeceases him. I'm no lawyer and don't know what the courts would do in that case, but I suspect the estate plan of the wife would have some weight, even if she had died some years before.

    Or she can just go to an estate lawyer, get everything written up, and ask him to sign. That's not ideal, and he could always balk at that point which would mean money wasted. But it sounds like there's general agreement and it's just the process he's dragging his feet on.

    A trip to an estates attorney would be the way to go.  Possibly you could be one of the trustees if she sets up a trust (which seems like a good idea but I am not a lawyer and she should check with a lawyer).

Archived Q&A and Reviews



One-time gift for Guardians in a will/trust?

March 2011

My husband and I are starting the process of setting up a trust and will. We have two small children, ages 1 and 3. They will, of course, be the beneficiaries of the trust and we have asked my brother and his wife, who have children the same ages, to be guardians if needed.

I understand that funds in the trust can be used for the children, but I'm wondering if it would be appropriate to make a one time gift in the trust to my brother to help with expenses. He lives in an equally expensive part of the country and it would be difficult to accommodate 2 more children in their 2 bedroom house.

I'm interested to know if other's have done this and if so, how did they decide how much was appropriate? Sarah

You're absolutely right in saying that the funds in the trust can be used for the children; that includes the ''expenses'' you want to help with. Every member of this community probably knows, all too well, that the cost of raising children isn't limited to the direct and obvious expenses like clothing and food. There's also the cost associated with a larger space, higher utility bills, and so on. The trustee should know that, too, and provide funds accordingly.

Basically, money from the trust is used like child support until your kids are old enough to inherit the remainder outright. It's a good idea to talk to your estate planning attorney about any specific concerns, though, so that you can address them in the final document. (For instance, do you want the trust to contribute towards the purchase of a larger house if necessary?) This is one of many reasons that it's always a good idea to create a trust with an attorney, rather than using software or an online trust mill.

That said, it's probably not a good idea to ''pay'' the guardian with a one-time gift such as you mention. The problem of determining the proper amount is only one of several considerations that tend to argue against this approach.

Finally, on a side note, I'd recommend that you reconsider naming both your brother and his wife as guardians. If they were to split up (however unlikely that seems today), would you want your kids caught in a custody battle between them? Another question might be whether you'd want either of them to serve as guardian if they were not married? (For some people, that's not a concern - for others, it is. Only you can know what's right for your family.)

If your attorney isn't being helpful with this question, you may want to take a look at some of the advice and information that's readily available on this subject for free. There's an article on my website ( about choosing a guardian, for instance, or you could look lots of other places for sound legal advice. KH

I'm not a lawyer, but after doing my own estate planning, my understanding is that the guardians can spend the money on anything they need for your kids w/ or w/o your specifying in the will/trust. So for example if they need a bigger house bc of your kids, they can buy/rent one. If you are assigning a separate person to be in charge of the money, then the guardian will have to convince that person, but otherwise it is up to the guardian.

If you want to encourage them along these lines, I think you can put in some language about how much you appreciate this and you don't want it to be a financial burden to them and you are leaving the money for them to use as they need to take care of the kids including providing appropriate housing. Or you can talk to them about it while you are still alive, but I know that is kind of hard. best wishes (hope none of us need these docs!)

Choosing a guardian for my child

June 2009

We are in the midst of trying to choose a guardian for our child--not a fun conversation, but we are practical, and do not want for our child to not be provided for in the way that we wish, should the worst happen. Neither of us would consider any of our siblings nor our parents as guardians, and as such, this is very important to us that we get it on paper.

We are finding that we are at a loss for how to go about this! We feel that we have narrowed it down to three choices, who offer very different qualities. I am curious about how others have gone about choosing someone to parent their child in that worst case scenario. Did you ask questions (other than ''Is this something you would consider?'' we don't know what to ask)? Was it sort of an interview? Did you identify those elements in your lives that you feel could not be compromised (religion, geography, education, finances, etc.???)?

I am sure that part of the sticking point is that, of course, it is a terrible thing to imagine, and really, we want it to be US raising our child! But again--we are trying to be practical, and we want to be prepared should the case arise.

Any thoughts, resources, etc., would be most appreciated. Be Prepared

Although as you point out, this is a somewhat morbid topic of conversation, it is also a fascinating one, because it brings to the fore the things you as parents consider most vital to your child's welfare, which is a conversation that parents unfortunately under other circumstances often do not have. One issue for us was that we felt it was important to have our son grow up with family. ''Family'' can of course be very widely defined, and anyone loving enough to agree to raise your child is likely to fit the definition. (Nota bene -- if birth families are dysfunctional, then look elsewhere.) Having decided that, we looked at siblings rather than parents for obvious reasons. First -- had our siblings and their kids shown that they truly loved our kid and could include him easily? Then values were taken into consideration -- not necessarily which political party they supported. How much time do they spend with their kids? How generous are they in their larger community? What kind of lifestyle do they have (hyperconsumerism was one problem we looked at). Geography was far down on the list. Even though my son has one uncle and aunt living here in the Bay Area with a couple of kids, it was clear to us that it wouldn't be a good fit -- the aunt had always been chilly, both parents worked very long hours with no time for their own kids, buying stuff was their top priority, etc. One of my sisters is a sweet and wonderful mom, but she's a conservative fundamentalist Christian whose husband is big into gun rights -- not a good match for us. Another sibling is a great Dad but had a difficult divorce and his son was troubled -- also not a good match, and his economic situation was shaky. The best match was my younger brother, who raised three kids with his wife and lives out in the Midwest. Of course, all this is predicated on the family saying yes. Second place was my son's Dad's sister, who also lives in the Midwest with her partner but is childless. They have always been warm to our son.

I think the parameters shift as your child gets older and has different needs (wants to stay in a geographical area, etc.) But those were our thoughts. grateful for family

Kudos to you for considering this very important and yes, difficult, question. I don't think there is any right way to go about choosing a guardian, but IMHO, the guardian-to-be is doing you an immense favor and you can't micromanage how this person would raise your children without you potentially offending them. Don't ''interview'' them. But you can make sure your philosophies are generally similiar. In the end, they will raise your children differently because they're different people. As long as they're loving, respectful and supportive of your children, that's the more important thing. anon

We picked a close friend and her husband, whom we knew well. Just asked, ''Is this something you would consider doing?'' ...

In my years as an estate planning attorney, I have found that choosing a guardian is often the single hardest part of the process for parents. I often counsel my clients to remember that they're not choosing someone who will be as good a parent as the child's own parents - nobody can do that! Rather, they're looking for someone who will be better than foster care, by as wide a margin as possible.

Then, I sometimes suggest looking at the Nolo Press website (, where you can find a more specific, and very helpful, article about this process. Good luck! KH

Definitely discuss the situation with your potentials, and ask specific questions if there are issues you feel strongly about, so you can make a decision that you feel good about. But please realize you can only control so much, and a guardian will ultimately raise a child using their own values, not a list of rules.

To give you an example, my friends have given me custody of their children should anything happen to them. However, they decided to put control of their estate in the hands of a 4 person committee which includes me and my spouse. So my husband and I would be the sole guardians but would need approval from at least one other committee member to use the children's inheritance for any purpose. This is all spelled out very specifically in their wills. You may want to create a similar arrangement, but I would definitely choose ONE particular person to get custody of your kids. I think if you have special wishes regarding your children's upbringing, you should discuss it with them, but trying to create a legally binding document regarding things such as where they will live is not realistic. What it comes down to is, you really can't control anything after you are gone. But you can dictate who will. Choose wisely, and trust them. -Glad to be a trusted friend

Keep in mind you may change your decision as your child(ren) grow and as your friend's circumstances change. And it is always good to have a first, second, and third choice. So you should ask each of your friends if willing, then order them in the order it makes most sense now, but revisit it every few years (sucks to think about it again, but also reassuring to know you don't have to pick the best guardian forever right now). For example, when our first choice moved out of the area, we made her the third choice bc we thought it was important to have our kids be able to stay in same schools and near other family and friends if the worst were to happen. When our second choice had a new baby, they got moved to 3rd choice bc we thought it would be too much for them to handle. Now that our son is over 18 and it is only my daughter, we can think about who would be best for her, not for both of them. best wishes

Hi! Good for you for being practical! Yes, we've had this discussion. Ironically, the friend who kept at me to do it, did so because she wanted to be sure she'd have them if the situation arose, but that's not at all who we chose. For us, finances were not high, because we make a modest income and social security would make up for what they'd need. First was willingness, of course. We have three, some may not want that! Next , for me, was who would raise them as close to the way I would? For me, this meant, spiritually, open minded, non judgemental, free thinking, and who would not try to replace me as the mother, but carry on my place for me. As in, tell them about me alot, keep me alive in their memory. It's very important to me that they know who I was, and you'd be surprised how many stories i've heard where that doesn't happen. Also, how well the couple gets along and communicates. This would add a great deal of stress, could they handle it? You are probably aware that the maternal grandmother will get custody if there is no will, so making this decision is very important. Let us all hope it never needs to be used!! anon

We had three different likely candidates who I knew would all be willing and able. In our case, they were all family. All had strengths, none were perfect.

One family lived far away, and while very loving, they had a different parenting style than ours, but at the same time was someone who I knew would make whatever personal sacrifices were necessary to give my children what they needed. Another also lived far away, and was already stretched with their own children, but had the family values and child rearing style most similar to us. And a third lived locally, my children already adored her, but she was single, and I was worried that the sacrifices required might be too overwhelming for her.

As our children were very young, we made the decision to go with the family whose style was different, but who we knew would be the most self-sacrificing. We figured that if they were young, relocating to the east coast and having to adjust to a different style was OK as long as they were given overwhelming love and support. But later, as the kids got older, we switched to the local family member, because we felt that she was now more capable to handle them as older children, and because at that point a required relocation would be much more difficult on the kids who now had strong ties to friends and community.

So in making your choice, you may want to consider that the best guardian could change over time as they and your children grow and change. I don't think anyone's feelings were hurt when we switched because we could explain that it was based on geographic reasons, not something personal.

Good luck in making your choice, and may it never matter! Also a guardian

The lawyer who helped us write our wills (Kathleen Hunt, recommended in BPN) was very helpful with this issue. She suggested that we talk with the relatives we were considering. This was a big eye-opener! We assumed that one sister would be happy to take the kids, as she is such a loving auntie. She said no, she would rather handle the finances (something also suggested by Hunt) and leave kid care to someone else. Another sibling called us up to say that she did want the kids if something happened, when we had discounted her originally because we thought she would want to continue her single life! This discussion was very reassuring, we realized how many people love our kids and that they would all do their best should the worst happen. Willful mama

Unpleasant friend has asked us to be guardians if she dies

May 2007

One of the moms in our playgroup is very needy and emotionally demanding. She's also been very rude to me in the past, so I try to keep my distance from her. Strangely enough, last week she called to ask if our family would watch her child in case she & her husband died suddenly! She doesn't have many friends and I personally am very wary of her because of her behaviour in the past so I am stumped about what to do. Plus her child has developmental issues and has lots of special needs. We have two small children of our own and there is no way we could take on her kid as well. What can I say to her that won't piss her off further? We love our playgroup otherwise but this is makine me want to quit it. anonymous

Wow..that's a whopper of a favor! I've been struggling with deciding whom I want to raise my kid if something happens to me or her dad for six years! But I digress...

First of all, I would presume that she is not asking you to take on the financial responsibility of her child. *Most* people who go to the trouble of assigning guardians to their children in the event of their deaths, have probably made the necessary financial arrangements as well (ie life insurance for the parents?). I would think if she is seriously considering you to be her child's guardian, you'd have every right to ask about this. But it doesn't sound at all like you would consider this anyway. Frankly, I think you should be able to say that while you are flattered that you would be considered for this responsibility, you feel it's too much to take on, having two kids of your own. You could even go so far to say ''don't you think you would want your child to be raised by someone with like minds, a family member, etc.?'' or just ask her why did she choose you?

At any rate, if she get's upset or mad about your turning her down, she's not really a friend to be troubled over, and if the rest of your mom's group gives you a hard time about it, they aren't worth it either. This is a HUGE decision and responsibilty.

I'm not sure she's not just testing you anyway. Haven't found my guardian yet

Close friends vs. family as guardians

October 2002

We are struggling with the decision of who should take over care of our children in the unlikely event that we die when they are young. How do other people go about this painful choice? We are fortunate to have my sister and her family nearby. We are close and get along fairly well, but there is alot of conflict (sometimes explosive) in their house and a parenting style we find too permissive and hands-off. I cherish this family but I cant see them raising our children (and my wife feels even more strongly than I on this). My sibling would be hurt to know we are not choosing them and they have chosen us for the same. Talking about our hesitations would not be fruitful- when parenting concerns are raised it just causes tension between us. My parents are elderly. We have friends whose parenting we like and whose home feels loving, but they speak another language at home and live in another part of the Bay area... There seem to be no ideal choices. So we never put anything into writing (like a will) which we know is negligent! We also dont want to choose someone out of the local area (like my wife's family- who live out of the country), because it would be too hard for my children to lose their parents AND have to move away from their whole community (school, friends, temple, etc). In addition, they are not as familiar with family members who live far away. I am glad for any guidance.

In my opinion, you should definitely choose the friends whose parenting style you like over relatives where there is a lot of conflict in the home. I've made this choice myself, although it was easier because my family members live far away and my friends are right here. A loving household beats out the foreign language problem or the distance from your kids' East Bay home.

The odds that your kids will have to be raised by someone else are very slim, as you know, but if it makes you feel better about the choice, include a letter with your will explaining your decision to your relatives in as loving a way as you can (e.g. emphasizing your philosophical closeness to their child-rearing style, rather than family criticisms which you won't be able to temper in subsequent discussions).

For the time being, unless your relatives force the issue in conversation with you, I wouldn't even bring it up. But if you have to discuss it, be honest, because this is the time that they *can* hear your opinions in your own voice with whatever softening you might be able to manage on their behalf.

Be sure to discuss this thoroughly with your friends, so that they will make a point of keeping your kids in contact with family, visiting their old East Bay community, etc.

Good luck -- Friends Preferred

choosing a guardian is extremely hard. there is no perfect parent for your children except you. it would be highly unlikely for your children to lose both of their parents, but it is important to choose someone before it is too late and someone else has to make the choice. you might need to pick the guardian that would be right for now and then change later on. your will is always amendable. perhaps you need to get your concerns about the way you want your children raised written down so that if a guardian is needed, s/he will have some guidelines. for example, if the guardian you choose is out of the area, you can ask that they temporarily stay here so that the kids can have a longer transition time before moving and that they bring the kids back to visit... nobody can replace you, so just remember that you are not picking a replacement. good luck. suzie

My husband and I run a consulting law firm that specializes in estate planning so we see this issue quite often. Here is what we tell our clients. No one will raise your kids as well as you. Deal with that reality. What you want is the best among your choices. And the choices may not be ideal, but they are better than no choice. It's better for you to choose than to allow family members to fight it out or have the court appoint someone. Also, you don't have to tell anyone who you named as guardian (but of course tell the guardian). Keep in mind, you can always change your plan. Name the best person now, and in 5 years, you may have met a couple with similar nurturing skills or your relatives may have matured into better parents. Your choice is not permanent. Every decision we make today can only be based on the best of our knowledge today. If tomorrow changes, then you can change your plan.

One other point, we recommend living trusts for most of our clients. We encourage our clients to leave their children's inheritance in trust to provide them with better protection. You can name a trustee of the children's trust to manage the finances and assets and name someone else as guardian. The guardian doesn't have to be great at financial management and raising children. Choose the latter and get someone else if need be for the former.

Congratulate yourselves on at least deciding to establish your estate plan. Good luck! Paula Allison

I empathize! Not sure I can give sure-fire advice, but just today my husband and I met with a lawyer to discuss this very thing. In our situation, both sets of our parents are probably too old, my family all lives far away (east coast and out of the country) and I had some real discomfort with either of my husbands' siblings being named guardians due to religious and social/political beliefs that are extremely discordant with ours.

I think the easiest part of a guardianship decision is that unless you and your parents had children quite young, your own parents' are not an ideal choice. Our criteria for choosing a guardian included someone who could raise our child in a way that is as similar to our own hopes for family life as possible - and that's not realistic for grandparents in their 70s.

I also think following your heart or your gut on whose house just ''doesn't feel right'' is key - and I come from a childhood home where explosive anger was pretty regular, it is something I would want to shelter a child from as much as possible. Will your sister feel hurt? Maybe, but I imagine that should the unthinkable happen - everyone who cares about you would rise to the occasion and respect your wishes.

In your case it sounds like keeping kids in familiar surroundings is important, so friends other other relatives nearby is probably the best option. I understand your concern about kids moving to a household where another language is spoken, but if it is a loving household where they would be welcomed and cared for...a slightly unorthodox situation is surely preferable to one where they have to fit into a difficult family dynamic

So what to do? In our case, we named my sister who currently lives out of the country. The idea is that if she decides to stay abroad we will name someone else, but since she plans to come back she is currently our top choice. She will surely settle on the east coast, so that's a compromise, but we felt like she would be the best person to raise our daughter in a way most like what we want to be able to do ourselves.

In any case, make sure you name somebody, I've been advised that if there is no specified guardian in can get tough on everyone when the court gets involved. Good Luck! anon

We ended up choosing my husband's sister's family as our children's guardian even though they live in So. Cal. This is only in the event that my mom can't do it. We simply couldnt' stomach choosing my sister and her family who live here and to whom my girls are close, because their parenting style is so different from ours. It was easy to choose, yet hard. But we have never told my sister that we didn't pick her. I don't think there is a need. If for some reason she asked, I wouldn't lie, but I doubt she'll ask. One suggestion; write a letter to her explaining why to be given to her upon your death. This was suggested to us, and I haven't done it yet, but would like to. It would be written kindly of course! We also specifically excluded my father, who is still married to my mother, from a bunch of things because of who he is. Again, a letter will be written some day.

I think the most important thing is for your children to be with someone whose parenting style/philosophy resembles yours. Kids are pretty resilient, and while it would be hard for them to move away on top of loosing you, ultimately, it would be best. Good luck. Hilary

We have also struggled with this issue, and are not completely sure (I have the Nolo trust book and plan on using it soon!). However, I really tried to focus on figuring out where my kids would be happiest and where they would feel most at home in the awful event that they lose both me and my husband. I have concluded that that is with my sister even though she and I have a lot of disagreements about some pretty big things! I just thought that even though you may not agree with your sister's parenting style, and way of resolving conflict, you kids might be ok with that stuff (I'm assuming that her relationship is basically solid, if you feel that it's shaky, that's a different story.) In other words, it might be the best option b/c a sister is a close family member, thus this might be the least traumatic move for your kids. Just my 2 cents. anonymous please

It is difficult choosing a guardian often because few of us have friends or family who would raise our child(ren) the same way we would. I had my son as a single mother and I was highly conscious from the first that I must pick someone in case something happened to me. I ended up choosing my brother and sister-in-law because, although they live a very different life than me, upper middle class suburban, relatively conservative, etc., I know they would be warm and loving parents to my son. And in the end, this is what counts. Dianna

Of course there are no ideal choices: YOU are the ideal parents for your children, and of course no one else seems as good. Nonetheless, this is not an excuse to procrastinate or not make out your will. Remember: IF YOU DON'T DECIDE NOW, SOMEONE ELSE COULD DECIDE FOR YOU LATER.

Ask yourselves, Who are the second best parents after us? And who will give my child(ren) the most contact with my extended family? Those are the long-term issues for your child's future. Don't worry about things like where they live--that's trivial, and changeable. Do worry about things like, Will [my choice] ensure that my child continues to have a relationship with the rest of the family? The second thing you have to do is make sure your choice is willing! And then you have to make the will. I suggest picking up Nolo Press's Will Book for a basic, legal will that will probably suit your needs for some years. It's also very easy to modify if you change your minds, add children, etc. Don't delay! Do it now! Mom who knows that even ''unlikely'' events can happen

We just saw an attny last week to settle the exact issue and to write a will. He suggested that little kids are very flexible and simply need to be with a family who will love them and care for them - and will share your values in upbringing of course. He believes that the location is not material at such a young age and that even moving them across the country would not be bad if they will have a caring family to help them. I had been taking the view that location is important - all the changes in schools, friends including the loss of parents and home seemed excessive to me if it could be avoided. We too will not use family members but we don't have anyone whose feelings would be hurt so I can't help on that matter. Lisa N.

Good for you for taking care of what I think is a very important part of a child's life. My husband and I were adamant that are two young children not go to biologic family. We picked out someone, although unrelated, who was the very best match for our children; that person is serving as the guardian (esssentially, parent) if something were to happen to my husband and me, simultaneously. In choosing this person we considered not only her giftedness and lovingness with our children but also that the choice of this particular guardian would allow our children to stay in their home, attend the same schools, keep their dog, etc. I recognize that not everyone has this luxury. We also designated a trustee for our estate who would have been a great guardian for our children as well, but who would have necessated a geographical move for our children, which we did not want. Our designated trustee is very saavy fiscally (an accountant and MBA) and can be trusted to meet the needs of our guardian, children, and dog. Our guardian, while also very fiscally responsible and saavy, isn't burdened with investment and disbursement issues and can attend exclusively to the role of parenting our children should something happen. Even though no biologic family, on either side of our families, would try to take custody of our children, it was still important that we spell out very specifically our reasons for choosing non-relatives. We didn't want any legal entanglements at a point when our children were trying to heal. There is a fairly large estate that falls to our children so it was essential that we had competent legal help as well as a competent trustee re: financial decisions and disbursements. A lot of the financial decisions we have designated, specified, and prioritized. Our guardian is also happy to make sure that our children's religious training continues; something you might want to reach agreement on. We have also made a videotape for the children should something happen, not to be morbid but to be supportive. We used the services of Richard Hill, an excellent and reasonably-priced Berkeley attorney, who only deals with trusts and estate law. It is ideal, I believe, to use the services of so Sleeps better at night