You Have Been Named the Guardian in Someone’s Will

The term “guardian” has different meanings in different states, but generally speaking, guardians are adults who are legally responsible for protecting the physical, mental, and financial well-being and interests of their ward(s). The legal guardian of a ward has many of the same responsibilities as the ward’s natural parent. This includes the duty to feed, clothe, and house the ward, as well as make decisions concerning the ward’s education and health care.

As long as you are willing and able to become the guardian of the testator’s ward(s) in the event of the testator’s death, there is no other action required of you. However, if you think you will be unwilling or unable to fulfill the duties of guardianship if the testator dies, tell the testator immediately so that he or she can change the guardianship designation in the will.

Guardianship Terms

Guardian: A person named in a will to have physical and legal custody of the testator’s ward(s) in the event of the testator’s death.

Guardianship: The position of acting as a guardian.

Probate Court: The court in which the guardianship proceeding takes place.

Testamentary Trust: A trust that is created in a will and set up after the testator’s death for the purpose of appointing a trustee to manage assets and distribute them to the ward(s) until the trust expires.

An Overview of the Guardianship Proceeding

To start a guardianship proceeding upon the death of the testator, the person designated in the will as guardian must file a written request with the court, usually called a “Petition for Guardianship.” In most states, guardianship proceedings that arise out of the death of the ward’s physical custodian are handled in probate court. Even though the testator named the guardian in his or her will, that person does not automatically become the legal guardian upon the testator’s death. The person named in the will must request guardianship from the court, and the court must approve the appointment.

When appointing a guardian, the court gives substantial weight to the guardianship designation made in the will—but as always, it is the duty of the court to determine what is in the best interest of the ward(s). In making a “best interest determination,” the court may assign a person to perform a home study of the prospective guardian, which typically includes home visits from the court-assigned person as well as interviews with the prospective guardian, other family members, and the ward(s), if age appropriate. The court may also require that the relatives of the ward(s) be notified of the guardianship request and may hold a brief hearing. In the event that someone contests the guardianship request, the court may order an additional investigation and/or hearings.

Although the court has the authority to name a different guardian, the court most commonly awards guardianship in accordance with the will. The court supervises the guardianship for as long as it exists, commonly until the ward(s) become adults, but perhaps indefinitely if the ward is an incapacitated adult. As a practical matter, the degree to which the court monitors the guardianship varies greatly depending on the circumstances of each individual case as well as state law. In many instances, there is little to no contact with the court.

Testator: A person who has made a legally binding will.

Trustee: The individual put in charge of overseeing the day-to-day management of property owned by a trust.

Ward: A minor child or incapacitated adult over whom a guardian has custody.

Will: A legal document that provides specific instructions for how the estate should be distributed, who is to be named guardian, and the carrying out of other final wishes after the testator’s death.

Frequently Asked Questions

Does the guardian named in a will have to serve?

No. A guardian has the right to accept or decline this responsibility. If the will names an alternate or successor guardian, that person will fulfill the guardian’s duties upon approval by the court. If not, the court will appoint an appropriate guardian.

What money will be available to help the guardian with the expenses of caring for the ward(s)?

Any financial support that has been provided for the ward(s) will be outlined in the will. Because state law may affect how property left to a minor is managed, a trustee may also be named in the will to manage property for the ward.

What about Social Security survivor’s benefits? Will that usually be available to help the guardian pay for the ward’s expenses? If so, how are those accessed?

A child may be eligible for Social Security survivor benefits based on the deceased parent’s Social Security work record. The guardian may apply for the ward’s benefits through the Social Security Administration. Documentation such as the ward’s birth certificate, the Social Security number of the deceased parent, and a copy of the death certificate may be needed in order to apply for such benefits.

How is the property managed when left to a minor child?

The trustee named in the will to manage the trust is responsible for paying for the education, medical needs, and living expenses of the beneficiaries.

What if the appointed guardian can no longer act as guardian?

The guardianship will remain in effect until the ward reaches age 18, unless it is changed by court order before that time. The legal guardian may also choose to step down if the duties have become burdensome. If that happens, the judge may appoint another guardian to fulfill those duties.

What happens if an appointed guardian passes away?

It is important for guardians to name appropriate successor guardians in their own wills. If no successor guardian is named in the guardian’s will, the court will appoint an appropriate guardian.

A Few Things to Consider About Guardianship

• Do you have a strong affection for the ward(s)?
• Is your residence large enough to accommodate the addition of the ward(s), and if not, will you be able to move or add on?
• Do you have the time and energy to devote to the ward(s)?
• Will there be sufficient additional income through Social Security survivor’s benefits and/or a trust for the ward(s) funded by the testator’s estate to support the ward(s)? If not, do you have sufficient income to cover the ward(s) remaining expenses?
• If you are in a relationship and/or have children of your own, is your own family unit stable and supportive enough to handle the addition of the ward(s)?
• If you are not in a relationship, do you have a strong support network to help you care for the ward(s)? If not, are you able to handle the responsibility of guardianship on your own?
• When it comes to issues such as education, health, and religion, will your decisions be consistent enough with the beliefs and values the ward(s) have been raised with by the testator?
• Are you willing to take on the responsibility of guardianship in the event of the testator’s death?