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No parent wants to think about not being there for their children. ButNo parent wants to think about not being there for their children. But with 2.9 million U.S. children having experienced the loss of a parent or caregiver, choosing who would raise them if you couldn't is one of the most important decisions you'll ever make.
This guide walks you through guardian qualifications, key factors to consider, what disqualifies someone, and how to name your choice in a will.
A guardian is the person who raises your children if you can no longer do so. This person gains full legal authority to make decisions about your child's education, healthcare, living situation, and daily life. When parents pass away or become incapacitated, courts appoint a guardian, and your will is where you tell the court exactly who you want that person to be.
Two types of guardians exist, and they don't have to be the same person:
Most parents start by choosing a guardian of the person since that decision shapes everyday life. The guardian of the estate becomes important if your children will inherit assets, but you can split the roles between two different people if that works better for your family.
Every state requires guardians to be legal adults. Most set the minimum at 18, though some require 21. Beyond age, courts look for competency, which means the person can understand and manage the responsibilities of raising a child.
Competency isn't a formal test. It's about demonstrating sound judgment and the mental capacity to make decisions in a child's best interest.
U.S. citizenship isn't always required. Residency, on the other hand, matters more than many parents realize. If your chosen guardian lives in another state, your children would likely relocate, which means new schools, new friends, and new routines during an already difficult time.
Some families prioritize guardians who live nearby to minimize disruption. Others decide the right person is worth the move. Neither approach is wrong.
Your guardian doesn't have to be wealthy. YourYour guardian doesn't have to be wealthy—though raising a child to 18 costs approximately $320,000, your estate can provide financial support for your children's care through life insurance, savings, or a trust you set up.
Courts look for stability rather than a specific income level. Someone with modest means and a steady routine raises fewer concerns than someone with higher income but a chaotic lifestyle. The question is whether this person can maintain a consistent, safe home.
Qualifications get someone in the door. The factors below help you figure out who's actually right for your family.
Think about how this person would raise your children on a Tuesday afternoon. Do their views on education, discipline, religion, and lifestyle align with yours? A perfect match rarely exists, but significant differences in core values can create friction for your children down the road.
Before you name someone in your will, have a direct conversation. Many parents skip this step, which is one of several estate planning mistakes that can lead to problems later. Guardianship is a major commitment, and your chosen person deserves the chance to understand what they're agreeing to. They also deserve the chance to say no if they're not ready.
An existing bond matters. Your children will already be navigating loss, so a guardian they know and trust makes the transition less jarring.
Consider who your kids light up around. Who do they feel comfortable with? Who already plays a meaningful role in their lives? Starting from a place of connection helps.
A guardian's physical and mental health affects their ability to take on full-time parenting. Age matters too, though not as a disqualifier. A 75-year-old grandparent might be a wonderful choice for a teenager but less realistic for a toddler who will require two decades of active care.
Lifestyle factors in as well. Someone who travels constantly for work or already has significant caregiving responsibilities may struggle to add your children to their plate.
Would your children have to move? If so, how far? Relocating means leaving behind schools, friends, activities, and often extended family. For some children, that disruption compounds an already traumatic experience.
Stability during a major life change can make a real difference in how children adjust.
Courts have the final say on guardian appointments. Certain red flags will lead to rejection, even if you've named someone in your will.
Felony convictions, especially for violent crimes or offenses involving children, typically disqualify someone from serving as guardian. Courts prioritize child safety above everything else.
Active drug or alcohol addiction raises serious concerns about a person's ability to provide consistent, safe care. A history of substance abuse isn't automatically disqualifying if there's clear evidence of recovery, but active addiction almost certainly is.
Any documented history of abuse or neglect is an automatic disqualifier in most states. Courts check these records carefully during the appointment process.
Ongoing bankruptcy or significant debt may signal an inability to manage household responsibilities. More concerning, it could pose a risk to any assets your child inherits. This is one reason some parents name separate guardians for the person and the estate.
Courts often give priority to family members, but you're not required to choose a relative. Sometimes the best person for your children isn't related to you at all.
| Factor | Family Member | Non-Family Member |
|---|---|---|
| Court preference | Often prioritized | May require stronger justification |
| Existing relationship | Usually established | May require demonstrating the bond |
| Shared family history | Built-in connection | Fresh perspective possible |
| Potential conflict | Family dynamics may complicate | May avoid family disputes |
Choose the person best suited to raise your children, regardless of relation. Courts will honor your documented wishes unless there's a compelling reason not to.
Courts use a legal framework called the "best interests of the child" standard for all guardianship decisions. Judges consider the child's safety, stability, emotional needs, and existing relationships. They're trying to answer one question: what arrangement will best serve this child's wellbeing?
Your documented guardian selection carries significant weight. Courts generally honor a parent's choice when it's clearly stated in a valid will, especially when the choice is reasonable and the named person is willing and able to serve.
Putting your wishes in writing matters because it gives the court clear direction rather than leaving the decision entirely in their hands.
During probate, courts may reject your named guardian only if that person is deemed unfit or unavailable. This could happen if your chosen guardian has developed a disqualifying condition since you wrote your will, or if circumstances have changed dramatically.
Naming an alternate guardian protects against this scenario. If your first choice can't serve, you want the court to know who comes next rather than making that decision on their own.
Include the person's full legal name and their relationship to your family—details a will prep checklist helps you organize before you start. Be explicit. Vague language like "my sister" can create confusion if you have multiple sisters. Clarity protects your wishes.
Always designate a backup. Your first choice might be unable to serve due to death, illness, or changed circumstances when the time comes. An alternate ensures your preferences still guide the court's decision even if your primary choice falls through.
You can name one person to raise your children and another to manage their inheritance. This arrangement makes sense when your preferred caregiver isn't ideal for financial management, or when you want checks and balances built into the structure.
Your guardian choice isn't permanent. Life changes, and your estate plan can change with it.
Common reasons to revisit your selection:
With Herbie, you can update your guardian selection anytime at no additional cost. Your estate plan stays current as your life changes. Get started today.
Naming a guardian is one of the most important decisions you'll make as a parent. Don't leave it to chance or to a court.Yet only 24% of adults have a will—don't leave it to chance or to a court.
With Herbie, you can name your guardian, create your will, and keep your plan updated as life changes. High quality. No cost. Get started today.
Yes, you can name two people, such as a married couple, to serve as co-guardians. However, consider what happens if they separate or disagree on major decisions. Some parents prefer naming one person as primary guardian to avoid potential complications.
You'll want to reach a compromise since your will works best when it reflects a unified decision. If you pass away together and your documents name different guardians, the court faces conflicting instructions, which can delay the process and create uncertainty for your children.
No. You can name a guardian using a self-service platform like Herbie, which provides state-specific, attorney-vetted will templates you complete yourself. Many families find this approach faster, more affordable, and easier to update over time.
Your guardian selection remains valid regardless of where the guardian lives. However, you may want to update your will if the relocation significantly impacts your children's potential living situation, especially if proximity to extended family or existing schools was part of your original reasoning.
Yes, and having that conversation first is a good idea. Guardianship is a major responsibility, and your chosen person deserves to understand what they're agreeing to before you finalize your documents. The conversation also gives you a chance to discuss your wishes for how your children would be raised.
