One of the biggest motivations many younger families have for putting together a will or trust is to have control over who will serve as guardian of their child or children if both parents die.  This is obviously an enormous decision – bigger by far than the “who gets what” question that occupies so much time and energy in estate planning. Unfortunately, it is also one with which many parents struggle.

Before thinking through how to identify the right choice, a couple of clarifying points are in order. First, you have the opportunity to name a guardian through your will, and if called to do so the probate court will honor the selection you have made unless very unusual circumstances are present.  Second, you can update your guardianship selection at any time, and it is a good idea to revisit the choices every few years as your children are growing.

With those preliminaries aside, we offer some practical guidance on guardianship selection.  When thinking through this process, clients generally consider “first-tier” and “second-tier” factors.  In the first tier, you might consider the following:

·        Is the person honest, responsible, and trustworthy?  

·        Is the person willing to perform the role if the need arises?

·        Will the person be available to perform the role, based on age, health, personal and professional obligations, geographic location, etc.?

If a potential option meets all of the needs in the first tier, then consider the following:

·        Do your children have close, loving relationships with the person?

·        Is it important that your children stay in the same (or roughly the same) geographic area?

·        Do you have confidence that the person will be competent as a parent?

·        What values do you want the potential guardian to embody and/or instill in your children, and can you be confident the potential guardian is up to the task?

For such a personal decision, there are obviously countless more depending on your unique situation. Ultimately, the decision sometimes boils down to the “least stinky” option.  By its nature, this can be a difficult decision to make, but the worst thing that parents can do is to put off making a will because of indecision around guardianship options.  If you fail to name a contingent guardian in your will, the burden on your kids and the person administering your estate will be exponentially higher, as literally any “interested person” can petition the court to serve in the role.  You will do your kids, yourselves, and the loved ones whom you entrust with the care of your children, a great service by executing a will that identifies guardians byname.  

‍