We all know someone who left this world far too soon. Just recently, a friend of mine passed away, leaving behind her twin daughters. She was only a few years older than me, and her sudden death shook me. As I looked at my own child, I found myself asking, “What if that happened to me?”
It’s a difficult thought, but these are the things we, as parents, can’t afford to ignore. That’s why it’s so important to me that my clients take the time to think through these scenarios, even the uncomfortable ones.
The truth is, guardianship decisions are often among the most challenging aspects of estate planning for parents of young children, and the process can seem even more daunting due to several common myths. This guide aims to clarify some of these misconceptions, including:
- Why neither godparents nor any nomination made in a will automatically grants guardianship.
- Why a guardian doesn’t have to be a family member and is not a permanent appointment.
- The extent of control a guardian has over your child’s inheritance.
Is It True That A Godparent Automatically Becomes The Guardian?
It’s a common belief, but no—a godparent doesn’t automatically become the guardian of your children. If your hope is for a godparent to care for your children, you’ll need to officially nominate them in a written document.
It’s easy to see why this assumption happens. For many families, choosing a godparent is a meaningful decision, often recognizing someone you deeply trust and who shares your values. But legally, the title of “godparent” doesn’t hold weight in court. Judges are usually inclined to look at close relatives first, thinking they’ll be the best fit for your children.
So, if you’ve chosen a godparent for the role because they’re someone who understands and loves your children, the best way to honor that choice is to put it in writing. A formal guardianship nomination is the court’s signal that this is the person you trust most to care for your children if you can’t.
This nomination is more than just a formality; it’s a powerful way to make sure your wishes are known. Writing down your choice and making it official gives the person you’ve chosen the clarity, responsibility, and honor of caring for your children, just as you would.
Does The Court In California Always Follow The Guardian Named In A Will?
Even if you name a guardian for your children in your will, the court in California doesn’t automatically confirm that person as the final guardian. While the court gives strong consideration to your wishes, its primary responsibility is to make sure your children will be safe, cared for, and in a stable environment.
The court will assess whether the nominated guardian can provide a secure, nurturing home. If it finds that the person you’ve chosen lacks stability—such as housing insecurity, financial challenges, or health issues—it might decide that someone else would be better suited. For example, if the nominee struggles with addiction, even if they’re working through recovery, the court is unlikely to place your children with them. This may be difficult to think about, but it underscores the court’s responsibility to prioritize your children’s wellbeing above all else.
The court’s role here isn’t to question your judgment or undermine your intentions. In fact, California courts defer to parents’ wishes whenever possible. They want to respect your decision and recognize the importance of your voice in your children’s future. But the court is also there as a safeguard, ensuring that any guardian can fully support your children’s safety, health, and development.
Is Guardianship Permanent Once Established In California?
While guardianship is meant to provide stability, it isn’t necessarily permanent in California. Once guardianship is granted, the guardian does not need to return to court for ongoing confirmation or reviews. However, circumstances can change, and if a guardian becomes unable to care for your children—due to health issues, incapacity, or other serious challenges—they have the option to step down or pass guardianship to someone else.
The court also has safeguards in place to ensure your children’s wellbeing over time. If concerns arise about their care, the court may re-evaluate the guardianship to confirm it’s still the best arrangement. This oversight helps protect children, ensuring they remain in a safe and supportive environment.
This is why naming backup guardians in your nominations is so important. If your primary choice cannot fulfill the role when the time comes, having a backup gives the court a clear alternative, offering additional guidance and flexibility should the guardianship need to be reassigned later.
Attorney Rebecca Sommer is an empathetic and enthusiastic Orange County estate planning lawyer, who has helped families throughout Southern California choose guardians for their minor children. Her extensive estate planning experience, combined with her deep empathy for other young parents like herself, has pushed her to make guides like these to help parents avoid any guardianship mistakes.
Have you made a formal nomination for the guardian of your minor children? For answers or to get started, contact Rebecca Sommer today to schedule an initial consultation.
Does The Guardian I Name In My Orange County Estate Plan Have To Be A Relative?
No, there is no legal requirement that a guardian be a relative. In fact, for many families, especially those in non-traditional relationships, choosing a guardian outside the family may be essential to ensure your children are cared for by the person you trust most.
For example, if your children are from a previous relationship, and your partner—though not a biological parent—has been the primary parental figure in their lives, nominating them as the guardian can help prevent potential custody issues. Without a formal nomination, a court may not recognize your partner as the natural guardian, and custody could be given to a biological relative instead.
The same goes if something were to happen to both you and your partner. You may prefer your partner’s family members—who are deeply involved in your children’s lives—to assume guardianship. Unless there’s a legal or adoptive relationship in place, these loved ones might not automatically be considered for guardianship without your written nomination.
For families in non-traditional relationships, having the right paperwork in place is crucial. By clearly stating your wishes, you can help ensure that the people who know and love your children best will be the ones to care for them if you can’t.
Will The Guardian I Name In My Estate Plan Have Total Control Over My Child’s Inheritance?
No, the guardian you choose for your child’s daily care does not automatically have control over their inheritance. In fact, it’s often a smart idea to keep these roles separate, unless you have a specific reason to combine them.
For example, you may have a sibling who would be a loving and reliable caregiver for your children, but they might not have the financial skills or organization needed to manage your child’s inheritance effectively. In such cases, you could nominate someone else—perhaps a family member or friend who is skilled with finances and understands the logistics of managing an estate. This person would serve as the “guardian of the estate” or, more commonly, as the trustee of a trust you establish for your children.
By setting up a trust, you can appoint a separate trustee to oversee the financial and legal aspects of your child’s inheritance. The trustee would manage assets, handle investments, and make financial decisions, ensuring funds are used wisely for your child’s care and future.
Of course, it’s also possible to appoint the same person as both physical guardian and trustee if they’re capable in both areas. But for many families, dividing these roles provides peace of mind, knowing that each responsibility is handled by the person best suited to it. This structure allows your child to benefit from both a nurturing home and responsible financial management.
Why Guardianship In Estate Planning Is So Important To Me
For me, the heart of estate planning begins with understanding my clients—what truly matters to them and what their unique family situations look like. My role is to help identify any gaps in their current plans and work through the decisions that will ensure they’re protected across the board. I’m especially passionate about planning for families with young children, maybe because, as a parent myself, I understand the weight of those “what if” questions.
My goal is to help them consider every angle, weigh the pros and cons, and make the decisions that will protect their children’s futures. In the face of the unimaginable, my work is about giving children the best possible outcomes in life, even in the hardest of circumstances.
Have You Chosen And Formally Nominated A Guardian For Your Minor Children?
For more information on Estate Planning With Children In Orange County, CA, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (657) 571-1241 today.
Attorney Rebecca Sommer is an empathetic and enthusiastic Orange County estate planning lawyer, who has helped families throughout Southern California choose guardians for their minor children. Her extensive estate planning experience, combined with her deep empathy for other young parents like herself, has pushed her to make guides like these to help parents avoid any guardianship mistakes.
Have you made a formal nomination for the guardian of your minor children? For answers or to get started, contact Rebecca Sommer today to schedule an initial consultation.
