Can I Name a Guardian for My Children in My Will?

What more important choice could there be for a parent than the arrangements for their children in the event of one or both parents dying suddenly? However, the law relating to these matters differs between states, which is why you should see a will attorney in Houston, whether you have just moved into the state or are Texas born and bred.

Can I Name a Guardian for My Children in My Will?

Naming a guardian for your children in your will is a recognized and effective method to express your preference for who should care for your minor children if both parents die or become legally incapacitated. However, naming a guardian does not mean that your decision is legally binding on the state. The nominee must be considered qualified, and the appointment of such a guardian must serve the child’s best interest. Though the court retains the ultimate authority to appoint a guardian, in Texas they will choose the parent’s appointee unless there is a reason not to do so.

Does this Mean the State Will Ignore My Wishes?

Not at all! In the vast majority of cases, the court will be guided by the arrangements made by a child’s parents. Final authority rests with the court to ensure that, in the rare cases that someone is nominated as guardian who cannot provide a safe, nurturing environment for the child, there is a legal mechanism to protect that child.

Do You Need a Special Document to Name a Guardian?

No, you can name a guardian as part of your will. However, you can also take care of this via a separate written declaration, known as a “designation of guardian before need arises.” The declaration becomes effective upon the parent’s death or their incapacity, whichever occurs first.

Two Types of Guardian

There are two basic types of guardians that a parent might name in a will. Firstly, there is a Guardian of the Person. This is the individual who you want to be responsible for the day-to-day care of your child, including providing them with food, shelter, education, and making medical decisions for them.

Secondly, there is the Guardian of the Estate. This guardian manages any money or property that belongs to the child. In some cases, this may be the same person as the guardian of the person. However, it may also be a separate person, particularly if the person best suited to care for the child is not experienced in financial matters.

If you die and have named a guardian only for the estate, the court may still need to appoint someone to be guardian of the person as well. This is the case unless the surviving parent is available and fit to serve in that role.

What Disqualifies a Potential Guardian?

This aspect of law is covered by the Texas Estates Code, which states that a person designated as guardian may be disqualified if any of the following criteria are met.

• They are found to be incompetent
• They are notoriously bad in conduct
• They have a conflict of interest with the child
• They are indebted to the estate unless the debt is insignificant
• There is evidence of past abuse or neglect

As with Texas Family Law, this aspect of the Estates Code takes the best interests of the child as its guiding principle. The court must make a determination that the proposed guardian is fit to serve these best interests, regardless of the designation in the will.

How Should You Choose a Guardian?

Naming a guardian for your child requires careful consideration. Sometimes your initial thoughts may turn out not to be so suitable. For example, your automatic thought might be that you want your own parents to raise your child in the event of your death. If your parents are still relatively young and healthy, this may be an excellent choice. However, if they are getting older and more frail, you need to think about whether they would be able to cope with the demands of raising a child or children.

This may sound like it shouldn’t need saying, but it is wise to communicate with the proposed guardian before naming them. Although the hope is that they will never be needed, it is important that they be willing and able to accept the responsibility. You may also want to consider naming an alternate guardian just in case your first choice is unable to serve if the time comes.

What Actually Happens After a Child’s Parents Die, Legally Speaking?

In the period between the death of the parents and the appointment of a permanent guardian, the court may appoint a guardian ad litem or a temporary guardian. This process is designed to ensure that the child’s needs are met during legal proceedings. If a will exists, and it clearly nominates a guardian, that person may be appointed as temporary guardian pending the final decision.

Consult a Will Attorney in Houston

If you have children, you need to have a plan for the worst-case scenario. While naming a guardian in your will is a good step towards taking care of your child’s future, it should be part of a broader estate plan. An experienced attorney can make sure that your will is legally valid and clearly expresses your intent regarding guardianship. We can help you to assess potential candidates for their suitability as guardians and also help you to communicate your wishes to them. 
The communication of your wishes can be done both in person and also in the form of documents such as letters of instruction. These letters give you the opportunity to provide more context for your choices and your wishes for your children’s upbringing. All in all, the help of a lawyer reduces ambiguity and can minimize disputes or delays in the probate process, meaning that your children suffer the minimum necessary disruption and can grieve you with loving support around them.
Though death comes to us all, thinking about the practicalities surrounding dying is unpleasant, and even more so when you consider how to provide for the needs of your children when you are gone. However, help is here. We can make sure that you can plan for the future with as little distress and disruption as possible. For trustworthy, compassionate service, get in touch with us at Hensley + Krueger, Attorneys PLLC in Houston, TX.