Updated on 06.13.08

The Guardianship Question

Trent Hamm

This is an extremely challenging article for me to write because it hits very close to home. Guardianship. Who will take care of my children were my wife and I to both pass away suddenly? It’s a question that’s so painful to think about that many parents simply don’t think about it – and that can prove to be a huge mistake.

Why worry about it? In the most generic sense, you don’t have to. Each state has intestacy laws (intestacy refers to laws that determine what happens to your property in the absence of a will) that will determine, based on a simple set of rules, who would have the opportunity to claim custody of your children. Often, grandparents, aunts, and uncles are options, and in most loving families, the people will come together and find a solid and workable solution for your children.

The only problem with this is that you have no voice in the matter. Your extended family and the state will be making this decision, not you and your spouse. Given the deeply personal nature of the decision, you’ll likely want some input on that decision.

How to Pick a (Possible) Guardian for Your Children

There are many different guides available on this topic, with drastically different advice. What I’ll offer is the criteria we used in coming to this decision.

Does the potential guardian share your values? In other words, does the potential guardian believe in the same things that you believe in and have many of the same philosophies about raising children that you do? To borrow from Les Miserables, you don’t want your little Cosette put in the hands of the Thenardiers, even if you believe they have the means necessary to raise your child.

Do you believe the guardian will raise your child in accordance with those values? Is that potential guardian a good person? If you’re not confident of their character, then you might not want to have your child raised by that person. For example, the guardians we selected for our own child have vastly different interests than we do, but I know their character – our children will be in good hands with them.

Does that potential guardian have a strong family network around them to help with the burden of having unexpected (and likely traumatized) children? Likely, if you die suddenly, the lives of the guardians you selected will be turned upside down. Does your guardian have the appropriate network of support around them to ensure that your child’s life doesn’t quickly descend into chaos? It’s often a good idea that the potential guardian lives near your child’s grandparents (or perhaps are their grandparents).

Will that potential guardian teach your children the basics of success in life? In other words, you wouldn’t want to turn your children over to someone who would be incapable of teaching your child basic life skills. Can the guardian manage their own life effectively?

Does that guardian have the financial security to ensure that your child’s needs are met? In other words, if they’re struggling to make ends meet right now, dumping two children into the situation might not be good unless you’re adding your own financial support (in the form of large life insurance benefits, for example).

Will that guardian have an expected natural lifespan that will allow them to remain as guardian until your child enters adulthood? Your children have already gone through the trauma of losing both parents. Why would you want them to go through the trauma of losing a guardian as well?

The relative values of each of these questions will likely vary a lot depending on your personal values, but they’re all worth considering. These are the exact questions we used when determining who we wanted as a guardian.

When making our decision, we actually made a giant list of everyone who we would even consider as a guardian, then gradually eliminated people one at a time, eventually winding up with three strong candidates. After a lot of discussion, we decided to choose guardians that had the best access (by far) to grandparents for support in raising our kids – that was our “tiebreaker.”

Planning for the Situation

Likely, if there’s a scenario where you and your spouse have both passed on and your guardian gains custody of your children, you’ll want your estate to be used to ensure that your child has every success in life.

First of all, your will needs to specify your guardianship plan. You may even want to specify multiple guardians, so that if your first choice is somehow unable to take on the responsibility, your second choice is clearly stated. Consult a lawyer and ensure that your will is set up properly and legally so that your wishes will be carried out.

The most effective method of ensuring your children get their assets may be to set up a living trust right now, so that if you do pass away, your property is considered part of that trust and can be distributed by the trustee. Within that trust, you could specify rules for disbursement to your children at certain periods in your life. You’ll need to identify a trustee to handle this – someone you deeply trust that you are confident could handle this task with good faith.

If you don’t have significant assets and your primary gift to your children is your life insurance, you can specify in your will that these cash assets are placed into a trust for them. Again, you’ll need a trustee that you really trust, and again, you really should contact a lawyer to get the specifics worked out.

Your children are some of the most valuable things you’ll ever give to the world. Take the time right now to ensure they’re well taken care of if something happens to you.

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  1. Shanel Yang says:

    I just want to add that you should ask permission first from the person you are listing as the guardian. It often makes sense to make the guardian of your children the same person who you are naming as the trustee to your estate. Otherwise, the guardian of your children will have to ask the trustee of your estate for the funds to take care of your children — and all of that requires filings with a probate court and unnecessary trustee fees, court costs, and lots of attorney fees if there is ever a dispute.

    Very important topic and great post!

  2. Louise says:

    A very important point is to make sure the person you are considering is willing to be a guardian. It is a huge responsibility. A friend mentioned casually that they were considering listing me as guardian of their kids and it was very awkward to have to say no. I am childless by choice and would not make a good parent at this late stage of my life.

    I know that many people consider another family with similarly-aged children as prospective guardians. Siblings might raise all the cousins, for instance. Very close friends from childhood or college years are another source of potential guardians. If both families have children, then there is an implied balance of risk. If the worst happens to either family, the other is willing to accept the responsibility.

    Let’s hope that you and all your readers never have to put into motion any guardianship plans!

  3. Diane says:

    This was a decision so painful and unthinkable to my husband and me that we did not legally name a guardian until our oldest daughter was 18. We named her as guardian of her younger brothers. We named a BIL as conservator. Thank God it was never necessary.

  4. Mrs. Micah says:

    My parents had a hard time with that. What they really wanted was for her sister, who’s a resident (and double citizen) of Canada, to be our guardian. She had kids our age and similar religious/whatnot beliefs. But mom was worried that the courts wouldn’t award guardianship. I think it might have been more of a problem if the aunt hadn’t also been a US citizen.

    Anyway, they had several backups but it never became a problem. Now my little sister is 20, so we won’t have to worry about it anymore.

  5. Leah S says:

    This issue was so hard for my parents that they never wrote a will while they had minor children. My dad wanted us to go to one relative, my mom wanted us to go to another, and us siblings wanted another!

    As for my husband and I, there’s no question or doubt that we would want our kids to go to my baby sister. She’s absolutely the best with children – even at 22 years old she’ll still babysit on a very regular basis. She has wonderful experience handling unique kids (autism, heart transplant, kidney problems, deafness, cancer) so I don’t worry about potentially medical or traumatic kid in her hands. She’s currently getting a degree in Early Childhood.

    She also wanted 13 kids – but found out most guys aren’t THAT agreeable to that many. ;) So I don’t worry about potentially dumping a handful of kids into her life. My parents are financially well off, and I know that if my sister did end up with my kids and had a financial need that was beyond her budget, my parents would step in.

    Our second option would be to send the kids to our parents – but then that’s where we disagree. I’d want to send them to mine, hubby to his. But that’s not so fair to our parents. So it’s to my sister that we adore and love.

    Heh. Not that we have any kids right now. But we got that issue out of the way. :)

  6. leslie says:

    We actually have a separate guardian and trustee for our kids. My sister is the guardian and I know that she and her husband would do a fine job raising the kids. However, she is terrible with money so my dad is the trustee with my MIL as the backup trustee (my father is 70 and my MIL is 10 years younger). My kids would have a fairly substantial amount of financial resources should anything happen to my husband and I and my sister does not have the money skills (nor the desire to aquire those skills) to deal with that kind of money management.

  7. A.M.B. A. says:

    I agree – a difficult topic and decision. My parents were killed in a car accident when I was 14 and my sister was 9. We had four older sibling ages 18, 19, 21 and 23. My parents had neither a will or guardianship documents. After two years of bouncing around between aunts and uncles, the oldest slbling (and spouse) became the official guardians. That was the best decision. However, I don’t know if my parents would’ve chosen our oldest sibling. In retrospect, they probably would’ve chosen one of their siblings, not one of ours. This would have NOT been good.

    My advice is if you have adult children, name them the guardians of the minor ones. That way the family stays together. No matter how loving and nice aunts, uncles and cousins are, they are not your immediate family. I know that many people don’t have this option (older kids), myself included. Our young kids’ designated guardians are their 20-something godparents/cousins. And yes, do ASK the person(s) if they are willing to do this. We know in this family that it could be a very real possibility.

  8. In some states, the kids go directly to the state and the family must petition to get them back.

    I know of a case where a widow died out of state while there with her child. Without detailed instructions, her sister (who is a perfectly qualified and willing guardian) had to spend several weeks and lots of travel costs over several months to prove that she should be the guardian.

    Of course, you need to validate thee plan with the guardian. You must also validate with the trustee if you have assets to pass along. These should not be the same person.

    When you go to ask the guardian, you might also want to explain to them the financial situation that you have set up. Some guardians might be perfect due to character, but they might be afraid to agree if they were forced to bear all financial burden, so you should be ready to explain how you have planned financially. On the other hand, if you have already set up the trust and trustee, you can be sure as you explain the details that the potential guardian is not agreeing to receive a windfall.

    At age sixteen, my parents discussed with me and my younger sister the arrangement to ensure that we were OK with the potential guardians. It was a socking conversation but for the best. Thankfully, we never needed that plan.

  9. Valeria says:

    For heavens sake, don’t use silly undertaker euphemisms for death. People do not pass. Time passes, gas passes, but people DIE. Pass away – like all euphemisms – smacks of bad writing.

  10. EJK says:

    Thanks for the post. We are considering that right now. While we have a married daughter and a daughter who is our of high school, neither are in a position to raise and educate our remaining child as we wish. So we have turned to friends from church. Money is not an issue as we can leave enough life insurance and other assets to continue his education and provide for college (if he wishes). We will also look at a trustee to handle the money.

    It’s a big decision and we hope nothing happens to us, but life is uncertain and you never know what will happen.

  11. Cathy E, Chicago, IL says:

    My husband and I have talked about this many times over the past several years. I have a 23 year son who will receive his bachelors degree this year and is well on his way to a successful career. I also have two younger children (under age 12) and an extended family who is not close at all on either side. We have casually mentioned to my older son that if anything should ever happen to me or my husband, he would need to take care of his halfbrother and sister. Suppose we need to put this in writing so but it is extremely dificult to thikn about.

  12. Margaret says:

    My husband and I are still undecided on this. We have eight children thus far. The oldest child is not only not old enough to serve as guardian, but is mildly disabled and lacks the capacity. Honestly, I don’t know anybody among our extended family and friends who could take in so many. It’s not a question of finances– I believe we have enough life insurance– but there are other issues like the time and emotional capital needed to raise such a large brood. We’re planning to finally sit down with a lawyer this summer to do some estate planning, so I guess we’ll need to decide this pretty soon.

  13. Anonymous says:

    Any hints on how to deal with the issues of “who’s family?” My husband and I seriously discussed the issue of naming a guardian for our infant daughter. We narrowed our list down to a sibling on each side of the family whom we both felt comfortable with and then stalled… We are both hesitant to name one family over the other.

  14. Wendy says:

    Our baby is only 7 weeks old, but I have worried about this question for over a year. While I love my family dearly, every family unit my husband and I are close to have smoking/drinking issues that make me think I could never leave my baby with them. I have a few wonderful friends, but I could never imagine even asking to put such a burden on them. I’m not sure how old baby will be before we find a workable solution.

  15. one of nine says:

    Thanks so much for a thoughtful and interesting post. This subject recently came up between myself and my boyfriend. We’ve been together five years and I am pregnant with our second child(we have chosen not to get married for personal reasons. Recently we took out life insurance policies naming one another as primary beneficaries, and during this process we also considered what would happen to our children if both of us were to pass away at the same time.

    You are so right, Trent; this is an agonizing and extremely though-provoking question. Although we live in the U.S., all of my boyfriend’s family is in Brazil, so we face the same legal implications as a previous reader with relatives in Canada. We decided against naming any grandparents as guardian because of their age. (Good point about not wanting the children to deal with the loss of both parents and grandparents!)

    However, if we name one of my siblings (I have eight) as guardian, we also have to ensure that they are willing to take out children to Brazil to visit the family there at least once a year, and vice versa. This gets into the question of finances and can the new guardian afford this burden of travel? Can we provide for this expense through the living trust? What happens if our children are not legal age but the decide they want to live with their relatives in a different country? There are so many possibilities to consider, and I really appreciated the obvious thought and sensitivity which went into the advice you provided.

  16. one of nine says:

    Wendy, I completely understand how you feel. I also don’t have any clear direction as to who I would want raising my children. I feel that there is no one who will do the same job I will. However, if something were to happen, that choice would be completely taken out of my hands, so I prefer to make the decision now as soon as possible and consider that while no option is perfect, I can choose what would be the closest to my ideal preference!

  17. Margaret says:

    We have named my brother as both guardian and trustee should we pass away. Note we named my brother, not my brother and his wife, because bless her heart, I love her, but should my brother not be in the picture either, then I want them going to a blood relative. Or if they should divorce on bad terms, I wouldn’t want him to be forced to have to deal with her over the kids or the money.

    I think every parent has the same feelings of how could they possibly leave their children with someone else. For pete’s sake, I can barely stand to leave them with a babysitter. Still, saying it is too hard of a decision so you will wait is kind of missing the point. If you want to choose, then choose NOW. You can always change your will later. But the point is to have something in place in case of tragedy. I don’t suppose this is legally binding, but if you really and truly cannot bring yourself to name someone (which really means you are leaving them to whoever a judge decides), at least put your wishes for them in writing — e.g. the children stay together, stay near the grandparents or in their home community, raised in a certain faith, etc etc. Maybe if you write out the criteria, you will come to a conclusion about who would be best to name as guardian.

    My cousin has named me as the trustee in her will because her lawyer told her that the guardian and trustee should NOT be the same person. I can see the reasoning there, but I am comfortable in having my brother as both guardian and trustee.

    Definitely good to ask the person if they are willing first. And remember, just because you name someone, doesn’t automatically mean that will be where they go. The person could decline, or a judge could decide that it is not in the best interests of the children.

    I like the idea of naming an older sibling as guardian EXCEPT my mom’s parents died when she was 25 and her youngest sibling was 9, and I can sure see in her life how much she feels responsible (even 40 years later) for how her siblings are doing. Now, maybe that is just her personality, but you should think seriously about how that would affect the older sibling. I would like to do it when my oldest is 18 BUT if he was in university, that could mean either him dropping out or the rest of them moving to the city.

  18. my husband and i agonized over this decision after our first was born. we finally came up with the criteria that we wanted our kids to be raised in a good family setting (we feel our parents are too old) and we picked a relative with a family. we asked first, and sent them a copy of our wills (we also have life insurance that should take care of their needs). and then we decided we wouldn’t tell any of the rest of the family about our decision. i think it would hurt some feelings, and chances are we will get to see our kids mature and it won’t matter anyway. it’s still hard to think about, but i feel we’ve made a good decision.

  19. DivaJean says:

    This is a VERY important decision.

    We have had lengthy discussion with my sister in law, who is so fearful about finances to raise my 4 kidlets. We have allayed her fears to where she doesn’t have a panic attack thinking about the potential of adding 4 kids to her household (she has 5 year old twins of her own).

    She and her husband are the only reasonable choice we have. My sister and her husband are uber religous conservatives- if my partner & I died suddenly, no doubt my 4 kids would be taught how this was God’s judgement on my partner & I. Grieving kids don’t need that garbage.

  20. getagrip says:

    I agree with Margaret in that you need to either make a decision and go with it *now* or just admit you want the state to split your kids up and put them into foster care. That or you want your families to go through years of legal battles arguing over who gets them, or worse, who’s stuck with them. Don’t assume an older sibling will simply step in and “take on the family” since, depending on circumstances, they may not be found suitable by the court. Do right by your kids. This is especially important if your family or guardian is in another state.

    Understand, you will hurt feelings. When we made our decision for our children my mother threw a fit when she found out that I’d agreed to leave the children to my wife’s side of the family. The fact that she’d be in her mid 80’s (assuming she lived that long to begin with) when the kids were in high school didn’t seem to enter her mind.

    Money should be a consideration, but you need to verify what the child will get from Social Security and what they should get from your estate. This way you can assure the person you’re asking to take care of your kids they won’t suddenly be hit with a huge monetary responsibility on top of all the emotional issues (You shouldn’t need to get to detailed, just ensure them that they’ll be enough life insurance and Social to so they shouldn’t have a finacial burden). You could also recommend, either sometime later or as a comment in your will, that the person taking care of the kids take some classes in personal finance if they haven’t already. All that money coming to them can be gone pretty quick if you aren’t careful.

    Trent’s list of questions is good, and if you can find someone who can fit all of them to a T and is willing to take on your kids, fantastic. Just keep in mind, you may not get all of that so don’t use the fact that you can’t find the perfect person to leave them to as an excuse not to take action. Make a short list with priorties of who you want, discuss it with them privately, if they agree, gently bring it up later, after the will has been made, with other family members. Be ready to take some flack for your decision (you left them to so and so! Don’t you know X, and Y, and Z! How could you?). We made a decision some years ago, and are still okay with it (frankly more so now than before as my wife’s sibling has matured). Best of luck with this. It isn’t easy, but needs to be done.

  21. Suzanne the Godmother says:

    I’m the Godmother of the oldest of my two nephews. This was very important to me because I wanted a legal right to guardianship should anything ever happen to my brother and sil. (It took a few years before my brother could legally adopt him.)

    So how do I bring up my desire to take care of the kids to their parents? It’s a morbid subject, but certainly not taboo. It just seems odd to call up and say, “Hey, if you guys die can I take care of the kids?” Well, my parents will be here in two weeks for vacation so I think I’ll discuss it with them. They’d be the other best option to take care of the kids.

  22. melissa says:

    Graet Topic! Tough as it is my husband and I have been working on this, for a second time. We have moved across the country from where we started, and family dimensions have changed on both sides. Now, let me ask if anyone has any ideas of what to do when your children are special needs and neither of us have large families or friends to pick through.
    We will have at least 2 trustees lined up and I wish we had at least 2 guardians.
    Anyone have any pointers?

  23. PJK says:

    @ Wendy – I felt the same way, that asking would be a burden. I was pleasantly surprised that both my SIL and my best friend (my BF is the “back up person”) used the word “honored” when we asked them. In thinking about it, I suppose I’d also feel honored to be asked by someone…it’s surely a sign that they approve of your parenting ;-)

    My husband and I don’t have a baby yet (just found out I’m pregnant) but we asked these people on a “just in case” basis and had already planned to set up a will with a clause pertaining to IF we had children.

  24. Margaret says:

    Being a godparent confers no legal rights to guardianship whatsoever. I suppose you could argue in court that being the godparent indicates a close relationship with the family and thus you should be considered as a guardian, but it is not a legal relationship.

  25. Sharon says:

    If you asked me to be guardian for your four kids, I WOULD want to have specifics of how you plan to provide for them financially after your death. Your idea of “enough” and mine might be very different, and you might well decide to up your life insurance.

    Adding 4 kids means most likely I’m going to have to sell my present home and move to a much larger one, or put in an addition. I need more furniture, too, and closets. I’m roughly doubling my daily expenses moving from a household of 4 to a household of 8, between groceries, clothes, utilities, gasoline, treats, vacations, etc. I’m going to need a bigger vehicle, with all those attendant expenses. I doubt very much that I’m going to suddenly have my salary double, and I’m going to incur some new childcare expenses. My health insurance premium is likely to skyrocket, and health care expenses. And wait, there’s more! The list goes on and on.

    On the bright side, the 6 kids will have a better crack at scholarship and loan money for college.

    Nobody has any idea when their life is going to end. I certainly agree that if you can’t decide on the guardianship question, then you need to reconsider having a child at all. The life you will leave your child to because you are afraid of offending a friend or relative could be a very, very hard one. Raising children is a whole series of hard decisions. Better make this one NOW!!!!

    Congratulations to those posters who have the wisdom and maturity to face the question of guardianship before having the baby! And get those papers filed before the baby is born. Sometimes newborns survive the death of their parents.

  26. Sharon says:

    I strongly recommend having the financial trustee and the guardian be two different people. The sums of money involved in rasing children, coming as a lump sum, can be very large. The individual may or may not know how to handle that large account. They may end up seeing a crooked financial advisor, or they may not actually be as honest as you think they are.

    They can act as a check and balance on each other. Every parent makes bad decisions, and having a financial trustee to question decisions can keep really bad things from happening. And having a parent question financial decisions made with large amounts of money can do the same.

    Also, this way each party knows someone else is watching. All human beings know temptation, and most of of us at times have to remind outselves that we don’t really want anyone else to know about [whatever we are tempted to do], so we don’t. If there is nobody watching over the money or the major parenting decisions, it is awfully easy to make big mistakes and even slip over into illegal and immoral decisions.

  27. princess_peas says:

    Would it be appropriate to leave conditions? EG. My sister, on condition she took the children to church every week. OR Friends from church provided they maintained weekly contact with my own family? Or anything else along those lines. Or do you just have to take people “as is”?

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