Considerations for Parents with Minor Children

If both parents pass away, the probate court will appoint a guardian for minor children. If you do not nominate a guardian in your will, a judge will select one. When evaluating potential guardians, analyze the following factors:

• Age and Health: Are the candidates physically and emotionally capable of raising children to adulthood? Grandparents may have the desire but lack the long-term health.
• Values and Parenting Style: Do the candidates share your views on education, discipline, and religious or cultural traditions?
• Location: Will the children have to relocate, change schools, and leave their community?
• Financial Security: Raising children is expensive. You should structure your estate so that your assets support the children’s expenses instead of relying on the guardian’s personal finances.

Once you select a guardian, confirm that they are willing to accept this responsibility. Nominate an alternate candidate in case your primary choice cannot serve.

If your chosen guardian accepts the responsibility, complete the following steps — they reduce the risk of custody battles and contested wills:

Wills and Trusts

Both parents must nominate the same primary and alternate guardians in their respective wills to prevent custody disputes.

Asset Management

Do not leave assets directly to minors. Instead, direct assets to a trust or a custodial account under the UTMA. Appoint a trustee or custodian (ideally separate from the guardian) to manage the funds, establishing a system of checks and balances.

Confirmation Letter

Provide the nominee with a signed, dated letter confirming your request. Review and re-sign this letter annually to demonstrate your intent to the probate court.

Family Alignment

Inform close relatives of your decision to reduce the likelihood of post-mortem court challenges.

Financial Funding

Ensure your estate has sufficient liquidity. If your current asset base is insufficient, purchase term life insurance (e.g., 15- or 20-year term) with the trust or UTMA account named as the beneficiary.

Personal Letters

Write letters of instruction detailing your wishes for the children’s upbringing, education, and values, alongside personal letters for the children to read when they reach maturity.

Cover the First 72 Hours

A will nominates a guardian, but the will is in a drawer and the court is closed. Execute a separate short-term or standby guardian authorization—most states provide one, and California’s Caregiver’s Authorization Affidavit ( Cal. Fam. Code §6550) lets a named adult enroll a child in school and consent to routine medical care immediately—and give a signed copy to that person, to the school, and to the pediatrician. Otherwise the gap between your death and a guardianship hearing is filled by whoever happens to be there, or by child protective services.