When parents think about estate planning, they often focus on who will inherit their assets. The harder question, and usually the one that causes the most hesitation, is who would raise their children if both parents were no longer able to do so.
I’ve seen parents spend months, and sometimes years, putting off an estate plan because they cannot agree on the answer. One parent prefers a sibling. The other has concerns. A close friend seems like a good fit, but choosing a non-family member feels uncomfortable. Rather than make a difficult decision, many families leave the question unanswered.
The problem is that not making a decision is still a decision. If something happens before a guardian is named, a court may ultimately have to determine who will care for your children.
Why This Decision Feels Different
Most estate planning decisions involve property, finances, or legal documents. Choosing a guardian is different because it requires parents to think about a scenario they hope never occurs.
It is also one of the few decisions in estate planning that is deeply personal. Parents are not simply choosing someone they trust. They are choosing someone who may be responsible for helping their children navigate one of the most difficult experiences of their lives.
Because the decision carries so much emotional weight, many people convince themselves they need absolute certainty before moving forward. In reality, very few parents feel completely certain. The goal is not to find a perfect guardian. The goal is to identify the person who is best positioned to care for your children if the unexpected happens.
What Happens If You Don’t Name a Guardian?
In North Carolina, parents can nominate a guardian for their minor children in their wills. While a court still has the final authority to make appointments, courts generally give significant weight to the parents’ wishes.
Without a nomination, the court may be left to sort through competing opinions from relatives or other interested individuals. The judge’s objective will be to determine what is in the children’s best interests, but the court will be making that decision without the benefit of knowing your family, your values, or the conversations you may have had over the years about who would be the best fit.
Most parents would prefer to make that choice themselves rather than leave it for others to resolve later.
What Makes a Good Guardian?
There is no single right answer, and there is rarely a perfect candidate. When discussing guardianship with clients, I often encourage them to think less about who they feel closest to and more about who would be able to step into the role successfully.
Some questions worth considering include:
- Does this person share your values and approach to raising children?
- Do your children already know and trust them?
- Are they emotionally and financially stable?
- Are they willing to take on the responsibility?
- Would your children be able to remain in a familiar environment, or would they need to move across the country?
- If they have children of their own, what would that family dynamic look like?
These conversations are rarely easy, but they often help parents move beyond assumptions and think more carefully about what life would actually look like for their children.
Family Is Not Always the Best Choice
Many parents initially assume a sibling should be named as guardian. Sometimes that is absolutely the right choice. Other times, a sibling may live far away, have very different parenting values, or already be managing significant responsibilities of their own.
Likewise, some parents hesitate to consider close friends because they are not family. In reality, what matters most is not the person’s title or relationship to you. What matters is whether they would provide a stable, loving, and supportive home for your children.
The best guardian is not necessarily the closest relative. It is the person who is best equipped to care for your children.
Consider Naming Backup Guardians
Life changes. The person who seems like the obvious choice today may not be available ten years from now.
For that reason, I generally recommend naming at least one alternate guardian, and often two. Having backup options provides additional flexibility and helps ensure there is still a clear plan if circumstances change.
It is also a good idea to revisit these decisions periodically. As children grow and families evolve, your choices may evolve as well.
Don’t Overlook Emergency Guardians
One issue that often gets overlooked is what happens immediately after an emergency.
If your chosen guardian lives several hours away or in another state, someone may need authority to care for your children in the short term while arrangements are being made. Depending on the circumstances, it may make sense to designate a trusted local friend or family member who can step in temporarily until the long-term guardian is able to take over.
While this is a relatively small part of an estate plan, it can make a significant difference during an already stressful situation.
Guardians and Trustees Do Not Have to Be the Same Person
Another common misconception is that the person raising your children must also manage the money you leave behind for them.
In many cases, these roles are separated.
A guardian is responsible for the day-to-day care of the child. A trustee is responsible for managing assets and using those funds for the child’s benefit. Depending on the family and the individuals involved, separating these responsibilities can provide an additional layer of oversight and support.
There is no universal right answer, but it is a decision worth considering carefully rather than simply naming the same person for both roles by default.
A Decision Worth Making
For many parents, choosing a guardian is the hardest part of the estate planning process. It requires difficult conversations and forces people to think about possibilities they would rather not consider.
At the same time, it is one of the most important decisions parents can make. Taking the time to address it now allows you, rather than a court, to decide who would care for your children if the unthinkable happened.
If you have children and have not yet named a guardian, or if your existing plan has not been reviewed in several years, it may be worth revisiting the conversation. We are always happy to help families think through their options and create a plan that reflects their wishes and priorities.
This post is for informational purposes only and does not constitute legal advice. Please consult an attorney for guidance specific to your situation.
Kim Le is the founder of Lotus Legacy Law, an estate planning firm in Cary, North Carolina. Licensed by the North Carolina State Bar since 2009, she holds a J.D. from the University of South Carolina School of Law and a B.A. from UNC Chapel Hill. Kim helps families across North Carolina with wills, trusts, powers of attorney, and probate, in English and Vietnamese.
