Choosing a Guardian for Your Children: What Every New York Parent Should Know
Who would raise your children if you couldn’t?
If you’re a parent of young kids, this is probably the one estate planning question simultaneously thought about and avoided. Admittedly, it’s not a fun thing to think about. But it’s one of the most important decisions you’ll make for your family, and it’s usually the question that gets parents to finally sit down and do their estate plan.
For some parents, the answer comes instantly — a sibling, a parent, a close friend. For others, there are two or three people who would all do a wonderful job, but there is no obvious front-runner. And for still others, no obvious choice comes to mind. Regardless of the circumstance, the question deserves serious thought. The person you name shouldn’t just be someone you love and trust. That person should be someone who would actually be right for the job of raising your children.
How do you name a guardian in New York?
In New York, you nominate a guardian for your minor children in your Last Will and Testament. This is why guardianship is so often the thing that gets young families to start their estate plan in the first place. It is not a lifetime’s worth of assets you’ve built, but rather the most precious thing — your children — that prompts the estate planning process.
In your Will, you can name a first-choice guardian and one or more backups. The word “nominate” is important — your Will doesn't hand someone guardianship automatically. If something happens to you while your children are still minors, a court will need to formally appoint a guardian, and the court’s job is to decide what’s in your children’s best interests. Your nomination carries real weight and courts generally defer to it, but the final call is the court’s.
That is why this nomination deserves careful and considered thought.
What makes someone a good guardian?
There’s no checklist that spits out the “correct” answer. I tell my clients to stop thinking in terms of who’s the closest relative, and start picturing what their kids’ day-to-day life would actually look like with that person — this is close to how a judge will think about it too. When nominating a guardian (and backups) in your Will, it’s wise to look at the question the same way a judge would: what is in the best interests of your children?
A few questions worth sitting with:
Would your kids feel at home there — not just welcome, but at home? Picture your children living with this person, not visiting for a long weekend. Would they feel safe, loved, and understood? Would this person give them the structure and stability they need day to day?
Do you trust how they make decisions? A guardian ends up making a lot of calls on your behalf — where your kids go to school, what medical care they get, how they spend their free time, how they handle the hard days. You don’t need someone who would parent exactly like you. You need someone whose judgment you trust, and who you know will put your kids first. Another, related question is one of values — does your nominated guardian share those values that you would like to impart to your children?
Will they keep the important relationships alive? A guardian doesn’t have to preserve every detail of your children’s current life. But think about who matters to your children — grandparents, siblings, cousins, close friends. Would this person make an effort to keep those bonds strong, or would your children drift from the people who matter to them?
Would they say yes? This is the one parents skip, and it’s just as important as the others. Someone can adore your children and still not be in a position to raise them — maybe they already have young kids of their own, health issues, a demanding job, or financial constraints. Have the conversation before you put anyone’s name in your Will. Then name backups, because life changes.
What if The right person lives far away?
Distance alone doesn’t disqualify someone. Sometimes the best possible parent for your children happens to live in another state, and that doesn’t make them the wrong choice — courts are still focused on what’s best for your kids, not their zip code.
That said, it’s worth thinking through what a move would mean. Would your children have to leave their school, their friends, their community? Would they be farther from grandparents or other family? Would relocating actually give them a more stable home, or just add disruption on top of an already hard time?
The calculation gets more complex if your first choice lives outside the United States. An international guardian may be the right fit for some families, but there are real practical and legal issues to think through — where your children would live and go to school, how their healthcare would work, how they would stay connected to family here. In addition, New York courts are generally not inclined to grant sole guardianship to someone who is both a non-New York resident and a non-U.S. citizen. Courts may prefer to appoint a New York-resident co-guardian in that situation, so it would make sense to think about who that person should be in your Will.
Does my children’s guardian also manage their money?
Not necessarily — and this can be confusing for parents. A guardian of the person raises your children. A guardian of the property (sometimes structured as a trustee) manages whatever assets you leave to your children.
The same person can wear both hats, but they don’t have to. It's common, for example, to feel completely confident that your sister should raise your kids, while also knowing she’s not the one you would trust with a six-figure inheritance. In that case, your plan can name her as guardian and name a financially savvy friend, family member, or professional trustee to handle the money.
This is also your chance to decide when your kids actually receive their inheritance. Most parents don’t love the idea of handing an 18- or even 21-year-old a large lump sum, and your plan can spread that out however makes sense for your family.
Can I change my mind later?
Yes, and you should expect to. Your guardian nomination isn’t set in stone — like the rest of your estate plan, it deserves a second look as your life changes. The person who’s perfect when your kids are two and four may not be the right fit ten years on. People move, have kids of their own, go through health changes, or simply become less involved in your day-to-day life.
A marriage, a divorce, a new baby, a move, or a shift in family relationships are all good prompts to pull out your documents and make sure they still reflect your wishes.
Planning for the people you love most
Estate planning for a young family isn’t about expecting the worst. It’s about knowing that if something did happen, your children would be raised by the people you chose — not left to chance.
If you have minor children and don’t yet have an estate plan in place — or your current plan hasn’t kept up with your family — I would be glad to help you work through these decisions and put a clear plan in writing. Schedule your Planning & Priorities Session to start the conversation.
Jennifer Krakowsky is an estate planning attorney and the founder of Jennifer Krakowsky Law PLLC, a boutique trusts and estates practice serving clients throughout Westchester County and the surrounding areas — including Tarrytown, Irvington, Ardsley, Dobbs Ferry, Hastings-on-Hudson, Scarsdale, Eastchester, Edgemont, White Plains, Yonkers, Sleepy Hollow, Briarcliff Manor, Hartsdale, Larchmont, and Mamaroneck. Attorney advertising.
