How Do You Legally Choose A Guardian For Your Child?

How Do You Legally Choose A Guardian For Your Child?

by | Feb 7, 2022 | Wills & Estates

Have you put off creating your Will because you can’t choose a guardian for your child? If you answered “yes”, you are not alone! This is a BIG decision and one with many factors to consider. In a worst-case-scenario, that no one likes to think about, this could be the biggest decision of your life.

If you die without naming a guardian for your minor child, three things can happen:

  1. In most cases, a friend or family member, will come forward and ask the court to be named the guardian of your child.
  2. If there is a custody battle between multiple people who want to be named guardian, the court will decide who would be the best choice for your child.
  3. If there is no option, your child will be placed in foster care until a guardian can be found.


Where Do You Start?
Do you know someone who has the same values as you about lifestyle, education, religion? If anything happened to you right now, who would be the first person to come forward and offer to take care of your child? Would the guardian that you choose put the child’s best interests first?

The guardianship clause in your Will tells the court who will take care of your child for the first 90-days immediately after you die. This guardian will have to apply for full-custody through the court but the court will likely not second-guess the decision made in your Will.

Step 1: Ask your guardian of choice if they agree to acting as your child’s guardian. If they answer “yes”, your guardian should have a copy of your legal Will so that they can act quickly in the event of your death.
Step 2: Make it official in the eyes of the court and create your Will with a Will & Estate Lawyer. A professionally prepared Will contains everything necessary to carry out your wishes.
Step 3: If you think that any of your family or close friends needs to know your choice for guardianship after your death because they may contest your choice, you should make your wishes known. After your death, a legal battle over your choice of guardianship would be devastating.

You can always change your mind and have your Will updated. It is a good idea to revisit your decision with your guardian every few years. In fact, it is good practice to revisit your entire Will every few years.

We are parents, too, so we understand that this decision can be tricky due to family politics and many other complexities. The most important thing to consider is the well-being of your child after you are gone.

At McMurter & Associates, we believe in full disclosure of all fees and disbursements, so you will always know what your fees will be. Our fees are clearly set out on our website at, or you can call us toll-free at 1-800-756-7138.