For parents of young children, this is usually the question that finally gets an estate plan written: if something happened to both of us, who would raise our kids? Without a written answer, a California court makes that decision with no word from you. A nomination in your plan is how your choice reaches the judge.
How a nomination works. California Prob. Code section 1500 lets a parent nominate a guardian of the person, a guardian of the estate, or both, for a minor child. Under section 1502, the nomination can be made in a signed writing, including one signed long before it is ever needed, and it can be written to take effect only on a condition such as the parent's death or incapacity. The court still makes the appointment, but the law directs it to give due weight to the parent's nomination. In practice, a clear, current nomination is the strongest thing a parent can leave behind on this question. The California Courts self-help guide to guardianship describes the court process itself.
Two different jobs. A guardian of the person raises the child: home, school, health care, daily life. A guardian of the estate manages property that belongs to the child. They can be the same person or different people. Many parents choose the relative who will be the best day-to-day parent for the first role, and handle money a different way entirely, through a trust, which usually works better than a guardianship of the estate.
Choosing the person. The considerations are personal and practical at once: the person's values and parenting approach, their age and health, where they live and whether the children would have to move schools, their own family situation, and whether they are willing. Always ask first. Naming alternates matters as much as the first choice, because circumstances change and the first choice may not be able to serve when the time comes.
The money is a separate question. Children cannot manage inherited property themselves, and a guardian raising them should not have to fund their care out of pocket. The most flexible answer is usually a trust for the children inside your living trust, with a trustee who manages the money for their health, education and support and distributes it on a schedule you choose, such as a portion at 25, more at 30, and the rest at 35. The trustee and the guardian can be different people, which gives each a check on the other; our guide to choosing a successor trustee covers that role.
Smaller amounts can also pass under the California Uniform Transfers to Minors Act, through a custodian. Custodial property normally goes to the child outright at 18, and under Prob. Code section 3920.5 a will or trust can delay that to no later than age 25. That is simpler than a trust, but far less flexible, and an 18 to 25 year old receiving a large sum outright is a risk many parents would rather avoid.
Beneficiary forms and the children. Life insurance and retirement accounts pass by their own beneficiary forms. Naming minor children directly on those forms can force a court-supervised arrangement to hold the money until they are adults. Naming the children's trust, or otherwise coordinating the forms with the plan, keeps everything under the terms you chose. Our guide to funding your living trust walks through how each asset gets there.
Where plans fall short. The common failures are ones of omission: no nomination at all, a nomination naming a couple who have since divorced, no alternates, or a guardian named with no money arranged to support the children. Special circumstances need special planning; for a child with a disability, see our guide to special needs trusts. Families with young children also tend to change quickly, which is why this belongs in every update to your estate plan.
Guardianship nominations and trusts for children are part of the estate planning we do for young families. The first conversation is free.
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This article is general information, not legal advice, and does not create an attorney-client relationship. Estate and business law change and depend on your specific situation. Speak with Donald W. Flaig before acting.