The short answer: In New York, parents usually name a guardian for a minor child in their will, and that person becomes the legal guardian only after the parent dies, the will is probated and the Surrogate's Court approves the appointment. To cover the weeks before that, or a time when a parent is alive but can't care for the child, New York also lets parents designate a standby guardian under SCPA § 1726. New Jersey has similar tools, including a testamentary guardian in a will and a standby guardian under its Standby Guardianship Act.
Almost every parent has quietly asked themselves, "If something happened to me, who would raise my kids?" If you don't write the answer down, a judge who has never met your family may make that decision for you.
What does a guardian for a minor child actually do?
There are two kinds of guardianship, and you can name the same person for both or split them:
Guardian of the person. The person who raises your child day to day: where they live, which school they go to, medical decisions and everyday care.
Guardian of the property. The person who manages money or property your child receives, such as an inheritance, life insurance proceeds or a lawsuit settlement.
How do I name a guardian for my child in New York?
The most common way is in your will. New York's court system explains that a guardian named in a will can only become the legal guardian after the parent dies and a Surrogate's Court judge approves the guardianship, and that the will must first be probated (NY CourtHelp).
A few practical points:
Name a first choice and at least one backup. People move, get sick or simply can't take on a child when the time comes.
Ask before you name. Talk to the person first. A surprised guardian is not a prepared guardian.
Name both parents' choices consistently. If two parents name different people in their separate wills, the court has to sort out the conflict.
Remember that the other parent usually comes first. If one parent dies and the other surviving parent is fit and has parental rights, that parent generally keeps custody. A guardian named in a will matters most when both parents are gone or the surviving parent can't serve.
Is naming a guardian in my will enough?
Often, not by itself. A will has two built-in delays.
First, it only speaks at death. If you're in a serious accident, hospitalized or otherwise unable to care for your kids, your will does nothing, because you're still alive.
Second, even after death, the guardian named in a will has to wait for probate and court approval. During that time, someone still has to pick the kids up from school, sign permission slips and make medical decisions. We wrote about how quickly this can turn into a crisis in One Death, One Courtroom, One Child.
What is a standby guardian in New York?
A standby guardian is a person you choose ahead of time who can step in quickly when a specific event happens. New York's courts describe a standby guardian as someone given temporary authority to care for a minor child while the parent is still alive, so the child can receive immediate care from a trusted person (NY Courts).
Under SCPA § 1726, a parent can designate a standby guardian in writing, or ask the court to appoint one. The authority can be tied to events such as the parent's incapacity, debilitation with the parent's consent, the parent's death, or certain immigration-related separation. Written designations have specific signing and witness requirements, and the standby guardian has to follow up with the court within set deadlines, so the paperwork needs to be done correctly.
Many families name the same trusted person as both the guardian in the will and the standby guardian, so there's one plan and no gap.
How does naming a guardian work in New Jersey?
New Jersey law lets either parent, by will, appoint a guardian of the person, a guardian of the estate (property), or both, for children who are under 18 and unmarried at the parent's death (N.J.S.A. 3B:12-13). If the other parent survives, there are additional consent rules, so it's important that the plan accounts for both parents.
New Jersey also has a Standby Guardianship Act. A parent can petition the court to appoint a standby guardian, and an alternate, whose authority begins on a stated activating event. The court appoints the standby guardian if it finds the person fit and willing and that the appointment serves the child's interests (N.J.S.A. 3B:12-72).
Who should I choose as my child's guardian?
There's no perfect answer, but these questions help:
Do they share your values on religion, education and discipline?
Do they have the time, health and energy to raise a child, possibly for many years?
Where do they live, and would your child have to change schools or leave friends?
How does your child feel about them, if your child is old enough to have a view?
For blended families and LGBTQ+ families, these choices can carry extra weight, especially where a parent's legal relationship to the child should be confirmed first. Our LGBTQ+ parents' estate planning checklist covers those steps.
What happens to the money I leave my child?
Naming a guardian of the person doesn't solve the money question. If a minor inherits directly, a court may need to oversee a property guardianship, and in many cases the child can get control of the funds once they turn 18, which is young for most people to manage a large sum.
A trust is often the cleaner tool. You choose a trustee, set the ages or milestones for distributions and spell out what the money can be used for, such as school, health care or a first home. Our post on wills vs. trusts walks through how the two work together. Also check that life insurance and retirement account beneficiary forms don't name a minor child outright.
Frequently asked questions
Can I name a guardian without a will in New York?
You can designate a standby guardian in writing under SCPA § 1726 without a will, but that covers specific events and has its own requirements. For a guardian after your death, a will is the usual tool, and most families use both.
Does the court have to follow my choice of guardian?
Not automatically. The court reviews the nomination with the child's best interests in mind. A clear, well-drafted nomination of a willing person is usually given great weight, but no one can guarantee the outcome.
Can I name a couple as co-guardians?
Yes, you can name two people to serve together. Think about what should happen if the couple later separates or one of them can't serve, and name a backup.
Should the guardian also manage my child's money?
They can, but they don't have to. Many parents name one person to raise the child and a separate trustee to manage the inheritance, which adds a layer of oversight.
How often should I review my guardian choice?
Review it every few years and after big life changes, such as a move, a new child, a divorce or a change in the guardian's health or circumstances.
Make the decision before someone else has to
Naming a guardian is one of the most loving things you can do for your kids, and it doesn't have to be complicated. If you live in New York or New Jersey and want a plan that covers the will, the standby guardian and the money, visit our estate planning page, book a consultation or call (877) 728-6256.
Attorney Advertising. Prior results do not guarantee a similar outcome. This post is general information, not legal advice.