Establishing a child’s guardian in a will

A will is a legal document that makes a testator’s wishes known upon their death. Common areas covered in a will include how property and assets are to be disbursed among family and friends. In some cases where a testator has children under the age of 18, a will includes their wishes for guardianship to ensure the proper care for their family. 

Assigning a guardian in a will does not guarantee that the person named will take over the care of the children in question. A surrogate court judge must approve the request based on their assessment of the guardian’s abilities to provide a stable living situation for the children. A guardian must be 18 years or older. After the will is probated and the guardian is approved, they take full responsibility for the children and are allocated the power to make decisions on their behalf. 

Key things to consider when selecting a guardian for your child

Choosing a guardian for your children is a crucial decision that requires careful thought. Below are some areas to consider when making this decision:

  1. Consider where the guardian lives. Providing your children with the same quality of living and access to essential resources, like good schools and activities, is a major factor to consider to ensure their comfort and happiness.
  2. Choose a financially stable friend or family member to be your child’s guardian. Raising a child is expensive, which can cause strain on someone with limited financial means.
  3. Consider whether your chosen guardian already has children. In some cases, this is a positive quality since they are experienced parents. In other scenarios, adding more children to their home may be overwhelming. 
  4. Select a person that shares similar values and beliefs. Ideally, your chosen guardian will continue to raise your children in a way that honors your wishes for their family values and upbringing.
  5. Consider a guardian that you know is ready and capable of caring for your children. Having an open, honest conversation about your expectations beforehand will ensure that both you and your prospective guardian are aligned and that they do not feel pressured or burdened by the responsibility. 

Obtaining guardianship of a child in New York

Matters involving guardianship are typically reserved for family court or surrogate court. Any individual who wishes to become a guardian must file a petition in court asking permission to take care of a child in need. Typically, the court terminates guardianship after a child reaches 18 or 21 years of age, depending on how the guardianship was granted.

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