How to Make a Will That Covers Custody of Your Children

You're tucking your kids into bed, or watching them in the back seat on a long drive, and you wonder who would raise them if you didn't come home. The answer is your will, but not in the way most people expect. A will doesn't award "custody." It lets you nominate a guardian, and a court has the final say. If the other parent is alive, that parent usually keeps the children no matter what your will says. This guide covers what a will can do, what it can't, and how to protect both your children's care and their money.

Custody and guardianship are different things

The word "custody" belongs to family court. Custody, meaning physical custody (where a child lives) and legal custody (who makes major decisions about health care, schooling and religious upbringing), is decided between living parents during a separation or divorce. A will is a testamentary document. It takes effect only when you die.

That is why parenting plans, visitation schedules and parenting-time orders have no place in your will. They settle disputes between two living parents. They don't control what happens to your children after your death. For that, the law uses testamentary guardianship: your will names the person you want to raise your children.

What happens if the other parent is still alive

According to the American Bar Association, if one parent dies, the surviving legal parent is the default guardian of the children and keeps primary parental and custody rights. Your will cannot take custody away from a surviving parent. That changes only if a court has terminated that parent's rights or found that parent unfit.

So you can't use your will to require an ex-partner to finish rehab, choose your children's school, or set conditions on the other parent's custody. If you have serious concerns about the other parent, raise them in family court while you're alive, with a family law attorney.

Your guardian nomination matters most in two situations:

• You are a single parent, or the other parent's rights have been terminated.
• Both parents die, for example in the same accident.

This is why it's worth having both parents' wills name the same guardian.

Your nomination is a strong preference, not an order

Naming someone in your will doesn't give that person legal authority on its own. The court reviews your choice against the "best interests of the child" standard. A few states show how this works:

• New York: The will must be admitted to probate. The Surrogate's Court then has to approve the appointment and issue letters of guardianship before your nominee can act.
• California: You can nominate a guardian in a will or in a separate signed writing. The probate court still decides, based on the child's welfare. Judicial Council Form GC-211 is the standard form for submitting or consenting to a parent's nomination.
• Illinois: You can nominate a standby or testamentary guardian in a will or a signed writing witnessed by at least two credible adults. The nominee can't act until the court confirms the appointment.

Courts generally give real weight to a parent's choice. That makes picking the right person, and making the choice clear, the most important thing you'll do.

Choosing the guardian who will raise them

The law doesn't give you a checklist. In my view, the questions worth asking are practical:

• Does this person actually want the job?
• Do they have the energy and time for it, at their age and stage of life?
• Do they share your values on things like religion and education?
• Would your children have to move far from school, friends and family?

Ask your candidate directly before you name them. Name an alternate in case your first choice can't serve. In California, a proposed guardian can sign a consent to the appointment on Form GC-211, which shows the court they're willing.

Separate the person who raises them from the person who manages the money

Guardianship law draws a firm line between two roles:

• A guardian of the person handles daily care, housing and medical decisions.
• A guardian of the estate (sometimes called a conservator) manages the child's money and property.

You can name one person for both roles or split them. Splitting them makes sense if the loving aunt you'd trust with your kids isn't the person you'd trust with an investment account.

Court-supervised money management comes with paperwork. In New York, a living parent is the child's natural guardian for physical care, but a court-appointed guardian of the property is generally required before anyone can receive and manage larger sums for a minor. The threshold is typically around $10,000. Guardians of a minor's estate owe strict fiduciary duties, and courts oversee them through accountings and reports. California, for example, requires a Confidential Guardianship Status Report on Form GC-251.

A trust can do the money job more smoothly

Many parents use a testamentary trust to avoid court-supervised guardianship of the estate. This is a trust created in your will that takes effect at your death. You name a trustee to manage the assets and make distributions for your child's benefit under the terms you set, outside the limits of a court-run guardianship of the estate.

Don't confuse the trustee or guardian with your executor. The executor, also called the personal representative, settles your estate: gathering assets, paying debts and distributing property through probate. The executor doesn't raise your children. One person can hold more than one of these roles, but each is a separate job, and each deserves a named backup.

Money your children may receive, and the tax rules that follow

Your guardian and trustee should know about income your children may be entitled to.

Social Security survivors benefits:

• Unmarried children under 18, or up to 19 if they're full-time in secondary school, can receive monthly survivors benefits if the deceased parent worked and paid Social Security taxes.
• Each eligible child can receive up to 75% of the parent's basic benefit. A family maximum caps total payments, typically between 150% and 180% of the parent's benefit.
• There is also a one-time $255 lump-sum death payment to a qualifying surviving spouse or eligible child.
• You can't apply for child survivors benefits online. Applicants must call 1-800-772-1213 or visit a local Social Security office.

Taxes on a child's investment income:

• Under the "kiddie tax" rules, IRS Form 8615 is used to figure tax on a child's net unearned income, such as investment returns, when it exceeds a threshold. That threshold has been $2,700 in recent tax years, and the IRS adjusts it periodically.
• If the child's unearned income is only interest and dividends, a qualifying parent can use Form 8814 to report it on the parent's own return instead of filing a separate return for the child.

Putting it all together

A will that truly protects your children does several things:

• It nominates a guardian of the person, plus an alternate.
• It decides who manages the money, ideally through a testamentary trust with a named trustee.
• It names an executor to settle the estate.
• It reflects the reality that a surviving parent usually keeps custody, and that a court will review your choice.

Because guardianship rules vary by state, an estate planning attorney where you live can make sure your will is signed and witnessed correctly. That way your nomination carries the weight you intend when it counts.

Sources (13)

• New York State Unified Court System
• NY CourtHelp: Guardianship
• California Courts Self-Help: Guardianship
• California Courts Self-Help Center
• California Courts
• Illinois Courts
• Cornell Legal Information Institute: Guardianship
• Cornell Legal Information Institute: Custody
• American Bar Association: Estate Planning Resources
• IRS Topic No. 553: Tax on a Child's Investment and Other Unearned Income
• IRS Forms and Instructions
• Social Security Administration: Survivors Benefits
• Social Security Administration