Thinking about the future can feel overwhelming, especially when you start considering what would happen to your minor children if something unexpected occurred. Many parents begin exploring estate planning when these questions arise, and one of the most common concerns involves guardianship. Read the below FAQ for common questions and answers about naming a guardian for your minor children in a will.
Naming a Guardian for Your Minor Children in Your Will: An FAQ
Q: Can I name a guardian for my minor children in my Will?
A: Yes, New York law allows parents to name a guardian in a Will, and doing so gives you the ability to decide who will care for your children if you pass away before they become adults.
Q: What happens if I do not name a guardian?
A: If no guardian is named, the court must choose someone, and the decision will be based on what the judge believes is in the child’s best interests (which may or may not align with your preferences).
Q: Can I name more than one guardian?
A: You can name a primary guardian and an alternate guardian in case your first choice is unwilling or unable to serve when the time comes. Likewise, you can nominate multiple primary guardians if the circumstances warrant.
Q: Should the guardian be someone who lives nearby?
A: Nominating a guardian who is geographically close to you often makes sense to minimize disruption in the child’s daily life, although the court will consider your chosen guardian regardless of his or her residence location.
Q: Does the guardian I choose have to be a family member?
A: No. You are free to select anyone you trust as guardian, including close friends, provided they are legally qualified and capable of providing a stable environment for your children.
Q: Can the surviving parent override the guardian designation?
A: If the other biological or legal parent survives your death and their parental rights remain intact, they will usually obtain custody regardless of your nomination of someone else as guardian.
Q: Should I talk to potential guardians before naming them in my Will?
A: Yes. It is important to confirm that they are willing to take on the responsibility so that there is no confusion or hesitation later.
Q: Can I update the guardian designation if circumstances change?
A: Absolutely. You can revise your Will at any time, and many parents update their estate plans as relationships evolve or children grow older.
Q: Will the court honor my choice of guardian?
A: In general, New York courts give considerable weight to a parent’s written wishes, and your designation will usually stand unless there is substantial evidence that the person you chose is unfit (such as a criminal history, history of child abuse or neglect allegations, etc.).
Q: Do I need a lawyer to name a guardian in my Will?
A: While you are not legally required to work with an attorney, many parents do so because a well-drafted Will helps prevent disputes and ensures that your wishes are clearly expressed.
Ultimately, naming a guardian is one of the most meaningful decisions you can make as a parent, and taking the time to document your wishes now can provide lasting peace of mind.
If you feel unsure about the process or want help creating a Will that reflects your goals, speaking with an experienced New York estate planning lawyer can help you protect the people who matter most. Contact Lacy Katzen LLP for an initial consultation today.
