You've thought about it, probably at 2am. You may even have a verbal agreement with your sister or your best friend. Feels handled.
A verbal agreement has zero legal standing. If you haven't named a guardian in a will, a judge who has never met your family makes the call, and relatives can end up contesting each other in court.
How to make sure the person you'd choose is chosen
Name them in a will. Guardianship for minor children can only be formally nominated there, which is why even people with trusts still need one. Name a backup too, in case your first choice can't serve. For a lot of parents, this single question is the reason the plan finally gets done, and it's a better reason than most.
What Happens If You Don’t Name a Guardian?
If you don’t name a guardian in a legally valid will, the court steps in. They initiate a process to determine what is best for your child, often leading to a situation where family members might dispute guardianship. This can be stressful and costly, with attorney fees ranging from $1,500 to $3,000, not to mention the emotional toll on your children as they await a decision that could take months.
Imagine you own a $450,000 home and have two minor children. Without a designated guardian, your relatives could end up in court, spending thousands that could have otherwise supported your children directly. This is why including guardian nominations in your will is crucial, ensuring that the people you trust protect your kids.
How to Choose a Guardian
Choosing the right guardian is a personal decision, often based on shared values, lifestyle, and the ability to care for your child’s needs. Consider their financial stability, emotional maturity, and willingness to serve in the role. Remember, it's more than who you'd want—it's about who can provide stability and safety.
Think about what day-to-day life might look like for your child under their care. Would they attend the same school? Would they live in the same city? Listing these considerations can help guide your decision.
The Importance of a Backup Guardian
Life is unpredictable. Even if your first choice of guardian agrees now, circumstances can change. They might face health challenges or move far away. Naming a backup guardian provides a safety net, ensuring there is always a trusted adult ready to step into the role if needed. It’s about creating a seamless safety net for your child’s future.
Ensuring your choice is not just a verbal agreement but part of a formal, legally valid will makes all the difference. It legally empowers those you trust, sparing your child the ordeal of uncertainty in an already difficult time.
Common questions
Q: Can a guardian be named outside of a will? A: No, guardians must be legally nominated in a will to have legal standing.
Q: What if my chosen guardian can't serve? A: Name a backup guardian in your will so there's always a trusted option.
Q: How does a court choose a guardian? A: Courts assess the child's best interest, but without a named guardian, their decision may not reflect your wishes.
Q: How much could contested guardianship cost? A: Legal fees can range from $1,500 to $3,000—money better spent directly on care for your child.
Q: Why is a family agreement not enough? A: A verbal agreement has no legal weight. Formalize it in your will to ensure it’s honored.
Not sure a will is worth it yet? Read Do I Really Need a Will?.
Get your free 12-step estate planning checklist
The same steps an attorney walks clients through — delivered to your inbox, free.