Who Will Choose Your Kids’ Guardian and Custodian?

October 22, 2010
300px KidsindoorwayC Who Will Choose Your Kids’ Guardian and Custodian?

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All parents of minor children should have at least a will.  Let me repeat.  All parents of minor children should have at least a will.  If you are a parent with minor children and you don’t have a will, you must get it done.

Why?  The following are the major consequences if you do not:

Children’s Guardian Named by the Court

Ordinarily, the surviving parent will automatically take care of the kids upon the other’s death. However, by not naming a guardian in your will, if the survivor parent is unavailable or unable to fulfill this duty, you are giving up your ability to choose what happens in the following cases:


The surviving parent is usually the court’s choice as guardian upon death of a custodial parent. Virginia says that no one other than a parent is entitled to be a custodian as long as the survivor is a fit and proper person to have custody. In Maryland, a guardian can only be appointed if neither parent is serving as guardian and no appointment has been made by will. Pennsylvania allows the surviving parent or grandparents custody or visitation rights.

  • What if your ex lives in another state and your child has other close relatives nearby?
  • What if your child does not get along with your ex and/or step-parent?
  • What if you think your ex is unfit?

Single Parent

In Virginia, state law indicates that no person unrelated to the children can be appointed guardian until relatives have the opportunity to petition the court for appointment.  Maryland allows any person interested in the children’s welfare to petition the court for guardianship.  In Pennsylvania, state law states a preference for a person of the same religion as the children.  All three states also give weight to the choice of any child 14 or older.

  • Is a relative or a close friend a more appropriate choice?
  • Is a particular relative a bad choice?
  • Is a move out of state acceptable?

The Court Will Choose the Custodian of Your Assets

You cannot leave money directly to your minor children (except for minor amounts). Therefore, if a surviving parent is unavailable, a “custodian” must be selected to handle their inheritance. In most cases, the same person named as the guardian of the kids should also be named custodian to avoid complexity.

However, assuming no parent is available as a custodian, the court will have the discretion to choose. This will expose your children and your assets to several risks.  For instance, if the court selects the guardian as custodian as well, that person may lack experience or discipline in finances to the kids’ detriment.  Alternatively, the court may also find it appropriate to appoint different individuals (or entities) as guardian and custodian, which could result in many unanticipated hassles, costs, and delays over time.

Your Children Will Get Their Full Share at Age 18

The court can only decide who takes care of your child and your assets until the child reaches the “age of majority”, or adulthood, which is determined by state law.  In Virginia, Maryland and Pennsylvania, with some exceptions based around disabilities or schooling, the age of majority is 18.

Does giving an 18 year old his or her full share of your assets without any strings sound appealing?


Simply naming the guardian and custodian in your will can avoid these scenarios.  Please refer to the opening paragraph of this post for further emphasis.

 Who Will Choose Your Kids’ Guardian and Custodian?
 Who Will Choose Your Kids’ Guardian and Custodian?


Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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3 Responses to Who Will Choose Your Kids’ Guardian and Custodian?

  1. Andrea
    October 27, 2010 at 10:29 am

    A lot of good motivating points!

  2. December 14, 2010 at 3:49 pm

    Thank you for mentioning our related article, Scott. Great information here — thanks for helping us spread awareness on the importance of naming a guardian.

    • Scott
      December 17, 2010 at 10:55 pm

      Thank you for your comments!

      Smarter Will, out of Chicago, is one of the leading providers of virtual online estate planning services. I regularly reference their posts on this blog as well.

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