by Joseph Nicholson

Created on: January 05, 2009   Last Updated: January 08, 2009

In the event the parent of a minor child dies, custody of that child will remain with the remaining biological parent or legal guardian. It is perfectly reasonable, however, to contemplate the death of both parents or some such similar situation in which no clear guardian for the minor child exists. In fact, it would probably be irresponsible for a parent NOT to nominate a guardian for their minor children in their Will.

It is important to remember, when dealing with the nomination of a legal guardian in a Will, that a Will cannot create legal guardianship over a child - it can only nominate a guardian. The process of making someone a legal guardian is called appointment, and only a court can do this. But, if a parent of the child in question is available to take custody of the child, the nominated guardian will have a heavy burden of showing why custody by that parent would be detrimental to the child. If this fact is successfully demonstrated, or if no other parent arises, only then is the probate court likely appoint the nominated guardian.

If no other parent is available when drawing up a Will to nominate a non-family member as guardian of a minor child, it's also important to consider other family members that might contest the nomination. Relatives of the child, such as grandparents, aunts or uncles, or adult siblings, can petition to legally adopt a minor child if the parent's intention for their child's custody is not made explicit in a Last Will and Testament. The Will is probably the best option for a parent who seeks to avoid adoption of their child by other family members, since the court will weigh their opinions of the child's best interest heavily. But, the parent's nomination is not binding on the court, and an interested relative could attempt to discredit the nominated guardian to obtain custody themselves. Therefore, it's appropriate to evaluate the nominated party in light of potential constestation by other family members, and include any information that might sway the court.

The decision to will custody of a child to an individual should not be taken lightly. Before an attorney will have a Will document executed, they will ensure the nominated guardian is aware of their nomination. But not only should the individual being willed custody be advised on the decision and given the opportunity to accept the responsibility, the Will should award sufficient financial resources as to care for the child. This can usually be done by either willing assets to the child via a testamentary trust or through a fixed trust established in the benefit of the new guardian with explicit directions on how it should be spent on the child.

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