Naming-the-guardian-of-your-child-in-your-willWhen most people think of a will and why they might need one, they think about who they want their property to pass on to after they die. However, one of the most important benefits a will offers is the ability to choose the person you want to take care of your children if you pass away while they are still minors.  In legal terms, this is called naming a legal guardian.

How to Choose a Guardian

Naming a legal guardian for a minor child is a big decision and one that requires a lot of consideration. When selecting a guardian, some of the things you will want to consider will be obvious; however, others may not be. Below is a non-exhaustive list of things to keep in mind when naming a guardian for a child in Florida.

Parenting Skills

Some family members who may not have children may be great with the kids for an afternoon, but do that have what it takes to fill the enormous role of a parent? Be sure to choose a guardian who has experience with children and the right temperament.

Religious Beliefs

For some people, raising a child in a certain religion is very important. If this is important to you, be sure to consider this when naming a legal guardian for a child. Even if a would-be guardian claims to be open to raising your child in your selected faith, it may not be practical.

Financial Situation

Raising children is expensive, so it’s imperative that you select a guardian who has the financial means to raise a child. Alternatively, you can also set up a trust or use other estate planning instruments to ensure that the guardian and your children have access to money.


Not everyone is up for raising children. Young people may be too focused on their careers and may not be ready to take on that level of responsibility, and older family members may not have the energy to raise young children again.


One often overlooked aspect of choosing a guardian is where the potential guardian lives. If guardianship is on the horizon, it already means your children will have gone through a lot. Uprooting them from their current environment may not be avoidable, but if it is possible to keep them nearby, that may be a thought.

Additional Consideration When Naming a Legal Guardian for a Child

Selecting a guardian is probably the most important part of the process. However, now that you’ve identified whom you want the court to appoint as guardian, there are a few other things to think about. In addition to the above considerations, you should also take the following into account when creating a will that names a guardian for a minor child.

Naming More Than One Guardian

When naming a guardian in a will, it is important to list more than one person in the event your first choice is unable to serve for whatever reason. Someone could pass away, take a job overseas, have children of their own, or change their mind about wanting to serve as a guardian. Consider providing three or four names—that way, you can rest assured that one of your choices will be appointed guardian.

Check in with Guardians

Once you’ve named a guardian, it is a good idea to address the issue every so often. You don’t want your selected guardian to start to have second thoughts and not know about them.

Providing Guidance for the Guardian

Parents too often spend all their time thinking about who they want to name as the guardian and neglect to document their wishes for how the guardian will raise the child. While this will not guarantee the guardian follows your wishes, it does provide the guardian with much-appreciated guidance.

What Happens If You Do Not Name a Legal Guardian for a Minor Child?

While naming a guardian may seem overwhelming, it is far better than the alternative. If you do not name a guardian for a minor child, the court will hold a hearing to determine who the guardian should be. And while judges are bound to act in the best interest of children, there is no way of knowing what evidence the judge will be presented with or what their ultimate decision will be. This can be very stressful for your surviving family members—not to mention the children. While naming a guardian in a will may not be easy, it ensures that your children are raised by the person you want.

What Happens If the Child’s Parents Are Divorced?

If you and your child’s other parent are divorced, the court will award custody of the child to their other parent, regardless of whether you have a will. However, there are a few situations in which the other parent will not obtain custody and the court will appoint a guardian:

  • The other parent is deceased;
  • The other parent does not come forward, essentially abandoning the child;
  • The other parent’s parental rights were previously terminated; or
  • The other parent is unfit to serve as guardian.

While there is no way to get around the fact that your child’s other parent will receive custody if you die, it is important to recognize this fact so you can take it into account when creating other elements of your estate plan.

Contact the Florida Minor Guardianship Legal Team at Beller Bustamante, P.L.

If you have children and have not yet created a will to name a legal guardian, consider reaching out to the Florida guardianship legal team at the law firm of Beller Bustamante, P.L. Our dedicated team of estate planning and guardianship legal team has extensive experience handling a wide range of guardianship issues and can effectively guide you through this important decision. We have more than 30 years of hands-on experience working with clients from all backgrounds and are confident we can help you address your issues in an efficient and timely manner.  We also offer a host of other estate planning and family law services. To learn more about the services we provide, give us a call at 904-288-4414 or through our online form.