Choosing a Legal Guardian: Who Will Get Custody of My Child if I Die Unexpectedly?

Every parent works hard to ensure the best for their children. But what happens to your child if you die unexpectedly? Who will be responsible for them and take care of them if something heartbreaking happens?

Unexpected death of a parent can leave many unanswered questions, especially when it comes to the care and wellbeing of young children. The responsibility and role of guardianship following the death of a parent can depend on the state in which you reside, who is listed on documents such as your wills or other legal documents and other even family dynamics.

It is important that all parents who have young children plan ahead regarding who would take custody should something happen to them suddenly. In this article, we review several things that may come into play when deciding where a child should go after the death of their parents. This includes covering some important points such as naming a guardian in your will, making use of an affidavit of guardianship, or even having consultations with an attorney if necessary.

What Is A Legal Guardian?

A legal guardian is a person appointed by the court to supervise and take care of someone who is not able to do so on their own. The guardianship may be voluntary or involuntary. Typically, it involves a minor, but can also apply to adults who require assistance because of mental illness or developmental disabilities.

A legal guardian is a person appointed by the court to supervise and take care of someone who is not able to do so on their own. The guardianship may be voluntary or involuntary. Typically, it involves a minor, but can also apply to adults who require assistance because of mental illness or developmental disabilities.

A legal guardian has many rights and responsibilities including making decisions about medical treatment, housing, education, and other matters that affect the ward. The responsibility of a legal guardian may be temporary or permanent depending on the circumstance.


A guardian's responsibilities are vast and varied, but all revolve around providing a safe and nurturing environment for the child in their care. As a legal guardian, they must ensure that the child is provided with all the basic necessities of life such as food, shelter, clothing, and medical care.

They are also responsible for making sure the child receives an education and is exposed to positive influences that will help shape their character. Guardians should also strive to provide emotional support and guidance to the child so they can develop into a well-rounded individual.

In addition to these day-to-day responsibilities, guardians must also be prepared for any unexpected events that may arise. This could include anything from dealing with behavioral issues to helping them through difficult times in their life.

Guardians should always be available to listen and offer advice when needed while also being willing to take appropriate action if necessary. Ultimately, it is up to the guardian to ensure that the child is given every opportunity to grow into a successful adult who can make positive contributions to society.


When making your decision over who should hold guardianship over your children, know the difference between each kind of guardianship. Every family's situation is different and certain circumstances may require a certain kind of guardian. The three types of guardianships are as follows:

  • Joint guardianship, in which two adults both share equal decision-making rights and responsibility
  • Limited guardianship, in which an adult guardian is authorized to make certain decisions or act on behalf of the child but not others
  • Full guardianship, where an adult guardian has exclusive decision-making authority and all responsibilities for the child

Guardianship Versus Custody

When it comes to deciding who should take responsibility for a child after the death of their parents, it is important to understand the difference between guardianship and custody. Custody refers to the legal right of a parent or guardian to make decisions concerning the care and upbringing of a child.

This includes decisions about education, medical care, religious upbringing, and other matters that affect the child’s life. On the other hand, guardianship is an arrangement in which someone other than the parent has been appointed by a court to have legal authority over a minor child.

What Is A First Responder In Regards To Guardianship?

A first responder in regard to guardianship is an individual who has been assigned responsibility for the immediate care and protection of an individual at risk due to age, physical or mental disability, addiction, or any circumstance where the person may not be able to think or act for themselves.

This responsibility usually falls on family members or close friends of the individual, but it can also be held by a legal guardian appointed by the courts. The first responder must provide crucial supportive services including making sure their charge is safe; helping them access needed services and supports; managing their finances; monitoring their health condition; advocating on their behalf; and providing a stable and nurturing environment.


In addition to appointing a guardian of your children after your death, you can also appoint a first responder, or temporary guardian. Your temporary guardian will take care of your children until the court can process and grant legal guardian rights to your preferred long-term guardian. You may want to name a first responder or temporary guardian if your preferred legal guardian does not live in state.

Your first responder will ideally live nearby and be able to take custody over your children right away. Naming a first responder will help authorities place your children in the care of someone you trust rather than placing them in foster care immediately following your death.

What Happens To Children If A Parent Dies Unexpectedly?


Joint parental responsibility is a legal arrangement between two parents that allows them to share the rights and responsibilities of raising their child. When two parents have joint responsibility, they both have the right to make decisions about their child’s upbringing and welfare. If one parent dies, the other parent automatically gains sole parental responsibility.

Joint parental responsibility is an important legal arrangement that helps ensure a child’s wellbeing and safety even if one or both of their parents are no longer around.


When a parent with sole responsibility for their child passes away, the court must decide who will take on this responsibility. The other parent is usually the preferred choice, as they are already familiar with the child and have an existing relationship.

If the other parent is still alive, they can submit a request to be given responsibility for their child. In most cases, the court will grant this request unless it believes that another person would be better suited to care for the child. This could include a close relative or family friend who has been involved in the child’s life since birth or someone else who has proven themselves to be a responsible and caring adult.

The court considers many factors when deciding who should take on parental responsibility after one parent dies. These include the wishes of both parents (if known), any existing relationships between the potential guardian and the child, and whether they have sufficient resources to provide for all of the child’s needs. Ultimately, it is up to the court to determine what is best for the welfare of the child in question.


If both parents die, then the court will decide who should be appointed as the child’s guardian. The court may also consider any guardians that were appointed in either parent’s will or entered into the parental responsibility register. Parents can also choose two people to have joint custody over their children. This ensures that there is someone responsible for taking care of their child in case both parents pass away.

Do Legal Guardians Receive Compensation?

In some cases, legal guardians of minors may receive compensation depending on the situation. For example, kinship caregivers or foster parents may receive a stipend from the state to help care for the child, and the court might name an adult guardian and award that person legal guardianship as well as compensation for providing care.

In other instances, people may serve as unpaid volunteer legal guardians for children who have been placed in their custody. Any compensations awarded to legal guardians of minors are typically designed to cover basic needs such as food, shelter, clothing, and education.

Things To Consider When Naming Guardians Over Your Children in the Event of Your Untimely Death

When writing a will, it is important to consider who you would like to appoint as legal guardians for any children under the age of 18. This person or people should be able to provide a safe and secure home for your children, as well as ensure their physical and emotional wellbeing.

It is also important that they share similar beliefs and values to your family, so that your children can continue to enjoy their favorite hobbies and activities.

When choosing a guardian for a child, it is important to consider all the potential candidates carefully. You may want to look at close relatives such as siblings or other family members first, but you should also think about friends or colleagues who could provide a stable home environment for your children.

It is also important to make sure that the person or people you choose are financially stable and have enough time available in their lives to dedicate themselves fully to caring for your children. Ultimately, it is essential that you choose a legal guardian who will be able to provide a loving and supportive home environment for your children in the event of your death.


If you have a partner or spouse, sit down together, and discuss who should take each of your roles in case of emergency. t’s important to be clear about what makes anyone suitable and make sure both of you are comfortable with whomever is chosen so there isn’t any confusion down the line when it comes time to make an official decision. Being proactive now will help ensure both of your wishes are considered when selecting guardians later on


First and foremost, the person you choose to be your kids legal guardian must be an adult. They must be 18 years or older to be appointed as a guardian for minor children. Ideally the person you choose should be an established adult who can take care of children.

At the same time, you may want to be sure the person or people you choose to be your children's legal guardian is not too old. Elderly people may have a harder time taking care of young children. There is also a greater chance they may pass away before your children turn 18. Someone who is a mature adult yet not considered elderly is an ideal age for a legal guardian.


When appointing a guardian, take into consideration their stability. This includes financial stability as well as stability in their personal life. If they are unmarried and have a history of volatile or short relationships, consider how comfortable you'd be with your children in their home. You can never be too careful with your children around strangers.

You may also want to consider the mental stability of the guardian you choose. If they have a history of mental health problems, the stress of taking care of children in the event of the untimely death of a parent may be too much for them. Someone who is stable in all areas of their life is a better choice for a legal guardian.


Does the person you're considering appointing as guardian live nearby or in another city or state? Where the legal guardian lives could matter in your decision-making process.

For example, if your children must relocate to a different city or state to live with their legal guardian, how will that affect them? Will they be okay switching schools and moving away from friends and other family members? Having to relocate could make a stressful situation for your children even more stressful.


If your children are old enough to understand what a legal guardian is, ask them who they would prefer to live with should something happen to you. You want to make sure your child is happy with whomever you appoint as their guardian. Though you will ultimately make the final decision, your child's feelings are valid and should be considered.

Read Our In-Depth Guide on 10 Tips to Support a Child in Returning to School After the Loss of a Loved One.


Before you appoint someone as your children's legal guardian, make sure they are comfortable with being a guardian. Speak with them first about why you think they are a good fit for your children should something happen to you.

Ask them if they are comfortable with the idea and if it's a responsibility they are capable of taking on. Legal guardianship should never be sprung on a person without their prior knowledge.


It's good idea to list multiple people as backup guardians for your children in case something happens to the first guardian of your choice. There is always a possibility that the person you appoint as guardian will not be able to take on the responsibility due to life circumstances or their possible demise. Naming guardians as backup will help the courts decide who should then take care of your children when you are no longer around.

Who May Be Possible Candidates and Willing To Serve as a Guardian to Your Child in the Event of Your Death?

When selecting a guardian for your child, start with considering any close relatives that could take on the role. This can include grandparents, aunts, uncles and even siblings. It is important to select someone this way as they are likely to have an emotional connection with your child from day one – something outside guardians may struggle with when taking on such an emotionally-taxing role. Additionally, having extended family involved may help provide additional stability for your children as they grow up.

However, if you do not have close family members up for the job of being guardian, consider your other options.

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Sometimes our friends are more like family rather than our own blood relatives. If you have close friends that you trust and share similar values with, they may be good candidates for being guardian over your children. These close friends can be your children's godparents, neighbors, or childhood friends you've grown up with.


In rare cases where you do not have a family member or close friend able to take child custody after death of you or your spouse, talk to a trusted individual in position of authority. For example, your child's pediatrician, teacher, coach, or even a family lawyer.

Consider naming these individuals temporary guardians who will ensure your children are safe until they can be placed in a suitable foster home. Of course, check with these individuals first to be sure they are able and willing to be appointed temporary guardianship.

How Do You Arrange for Guardianship of Your Child in the Event of Your Death?


After choosing who you want as guardian, decide whether it makes sense for there to be one sole guardian or two co-guardians (there may need to be special wording if one has guardianship over property while another has guardianship over the physical person). In addition, decide any rules or restrictions that would apply within the guardianship arrangement and discuss those expectations with all relevant parties prior to putting it into writing.

Protecting Your Children's Future: Writing Your Last Will and Testament to Ensure Their Well-Being After Your Death.


The legal forms needed will vary by state. The paperwork usually involves completing a will, nominating a guardian and transferring ownership of assets if necessary. If either one or both parents agree on who will become the legal guardian, speak with an attorney about what type of form needs completing for any decision regarding custody rights upon death being enforceable (this could include transferring title on real property).

There may also be other documents required such as health care directives or powers of attorney depending on circumstances specific to the family’s situation.


When changes occur within family situations such as marriage/divorce or new members entering/leaving – make sure knowledge throughout family members is up to date regarding legal custodial decisions made by court/legal order (this includes at least one surviving parent’s nominee when applicable).

Every 10 years, reassess if appropriate based upon current familial relationships and changes in personal preferences since initial nomination safeguard was created/implemented. Adjust nominated legal stance accordingly when required by local/countrywide laws, regulations, and legislations.


Upon the sudden death of a parent of a minor child, courts are obligated to rule in the best interest of the child. A judge will typically refer to your Will and grant guardianship to the person of your choice, but not always. The court will review the guardian of your choice and determine whether they think it is in the best interest of the child to grant them guardianship. If they believe the person of your choice is not fit for legal guardianship, they will choose a better candidate.


If you want to make clear to surviving family, friends, and the court why your chose a specific person or persons as your first choice for guardianship over your children, you can pen a Letter To Survivors. A Letter To Survivors is a personal statement describing the reasons for your wishes. You can also explain why you don't want certain people to obtain guardianship over your children. While the court is not obligated to follow your wishes, a Letter To Survivors could help them make a choice in your children's best interest.

When Should You Choose a Legal Guardian for Your Children?

Ideally you and your spouse should decide on a guardian for your children as soon as they are born. In life, we must expect the unexpected and sometimes that means an untimely death. The sooner you and your partner decide on who to name as guardian of your children, the better.

If you have not yet named a guardian for your children, consider doing so before the following events:

  • Before you undergo a serious medical procedure or surgery
  • When you begin aging
  • When you have received a life-threatening illness diagnosis
  • Before you travel on a long trip
  • Anytime you are in an unsafe country for travel or work
  • If you begin working in a potentially dangerous job (such as police officer, fire department, or military)
  • After a divorce or remarriage
  • When your previously named guardian dies or can no longer fulfill their duties

Common Mistakes to Avoid When Choosing a Guardian


Choosing a guardian is tricky but be sure to think long term when making your choice. For example, what if the guardian you choose dies before you update your will? What if they age poorly or become ill and can no longer fulfill the responsibility of being a guardian?

Thinking of a backup plan will help to avoid conflict or confusion when you are deceased and unable to make the decision yourself. Naming multiple guardians, estate planning, and financial planning are important steps to take to ensure your children are taken care of after your death.


If you feel strongly about who you do not want your children to be around, put it in writing now. When you pass you will not be around to object to court rulings should your named guardian be unable to fulfill their duty. Tell the court now who you do not want given guardianship over your children, so a mistake is not made.


You should make the decision of who should raise your children based on who you feel would be the best choice for the job. Don't make a decision to appease a certain person (such as a grandparent or other family member) because they feel they should be the one to raise them. The decision is up to you and what is best for you child.

What Happens if You Don’t Name a Personal Guardian in Your Will?

If you don't name a personal guardian in your will, the court will appoint one for your minor children. The individual named in this capacity must be able to provide a safe, stable home environment for the children. Depending on the state where you live, multiple individuals can be appointed as guardians depending on whether one has already been identified through estate planning (such as a trust).

Without a designated personal guardian in your will, the court may use numerous factors in making their decision such as when applicable: geographical location of potential guardians, income of potential guardians, emotional and academic needs of minor children, religious beliefs of potential guardians and any written preferences from deceased parents. Typically, the courts will favor family members over strangers to be appointed legal guardian.

How to Get Guardianship

Getting guardianship of a child can be a complex process and it varies from state to state. Generally, you will need to file a petition with the court in the jurisdiction where the child lives which usually involves detailed supporting documents and a hearing before a judge.

The court considers factors such as the best interest of the child, residence of the guardian, school district for the child, relationship that exists between parent and guardians, financial situation of both parties, etc., before making its decision.

The guardian is then responsible for providing guidance and support including making decisions about education, medical care, discipline, and other legal decisions.

How Can You Help Children Cope With the Untimely Death Of Parent?

It is very important to be honest and supportive when helping a child cope with the death of a parent. Be prepared to listen to their emotions and experiences and be open to provide comfort. Reassure them that it is normal for them to feel sad and confused about the sudden loss of their parents.

Additionally, providing comforting activities such as painting, journaling, or writing letters can help provide an outlet for children to express their feelings in an appropriate way. Finally, try to establish a lasting connection between the child and their parent by sharing stories and memories which will continue to bring strength during this difficult time.

Discover the Power of Journaling: A Guide to Understanding What it Can Mean for You and Your Loved Ones.


Keepsake jewelry is personalized jewelry that can help a child remember their parent in the event of their death. Some keepsake jewelry can be personalized with their parents' photograph, name, birthstone, or even hold a small portion of their ashes.

Cremation jewelry for children, or jewelry for children that holds ashes, incorporates a small compartment into the jewelry design for holding cremains. At Jewelry Keepsakes we offer a range of child size cremation jewelry that can be personalized for each recipient.

Cremation jewelry for children includes necklace pendants in child appropriate sizes. Cremation jewelry can help a child feel closer to their deceased parent by keeping a reminder of them around their neck always.

Ash jewelry for children is a unique form of jewelry crafted from the ashes of a loved one. It allows families to keep their deceased family member close, in the form of an accessory such as a necklace or bracelet that can be worn daily.

Child size jewelry made from ashes also provides an outlet for grieving, allowing the wearer to remember their lost loved one every time they wear it and hold on to cherished memories. This type of jewelry brings comfort during difficult times and lets people know that their loved ones are still with them in spirit.

Personalized deceased thumbprint jewelry is a unique way of capturing a special moment and wearing it close to your heart. Through an easy impression taking process and the help of experienced artisans, Jewelry Keepsakes can create a beautiful piece of jewelry with your thumbprint or fingerprints engraved into it.

Children can wear their deceased parent's thumbprint on their jewelry to commemorate their memory. Thumbprint jewelry pieces come in various materials such as gold, silver or bronze and can be customized with different names or inscriptions.

Photo engraved jewelry is a personalized, wearable form of art created from laser engraving where your favorite designs or photographs can be etched onto metal pendants and rings. By uploading an image and having it engraved onto jewelry, you can create gifts that are meaningful and one-of-a-kind.

Children can wear photo engraved jewelry of their parents to keep their image and memory fresh in their mind. Looking down at the face of their parents can help kids cope during difficult times. Child size photo engraved jewelry can be personalized with inscriptions, colors, birthstones, and more.

Guardianship Frequently Asked Questions

How do I appoint a legal guardian for my child in case I die?

Appointing a legal guardian for your child is of paramount importance in the event of your death. You will need to think carefully about who you would like to appoint as the guardian and make sure that they are willing to take on this responsibility. Generally, it is best to name a relative or close family friend.

You should then draw up a legal document, which may need to be witnessed by a solicitor and created according to your country's laws. This way, you can rest assured that upon your death, your child has someone who is legally responsible for their wellbeing and care.

What happens to a child when a parent dies?

Immediately after a parent dies, a child may be placed child protective services until a family member or friend comes forward to obtain temporary custody. From here, the courts will decide who should have legal guardianship over the minor. The decision is based off what is written in the deceased parent's will.

If no person is named as legal guardian or the court does not think the named guardian is fit for the job, the court will appoint someone else. In most cases, the court will choose a close family member or relative. If just one parent is deceased, the other biological parent will be granted custody unless they are unwilling, unable, or unfit.

Who gets custody of a child if a parent suddenly dies?

If a parent dies suddenly, the remaining custodial parent typically receives custody of the child if alive and well. If the custodial parent has also passed away, then custody would likely go to a relative who can provide a supportive home environment for the child.

In other cases, pre-established legal arrangements made by the parents might come into play, such as an agreement on granting guardianship to a close family member before either passes away. However, it is up to the court and state laws to award custody of a minor if both parents are deceased.

How long does it take to be appointed a legal guardian of a child?

The process of being appointed a legal guardian of a child varies from state to state, but generally it can take up to six months. The first step is typically filing the appropriate paperwork with the court, along with any necessary documents such as financial information and background checks.

Once this paperwork is submitted, a hearing will usually be conducted so that both parties can appear before a judge and make their arguments for why the proposed legal guardianship should be allowed. Ultimately, the judge will issue an order confirming or denying the appointment of the prospective guardian based on what they believe would be best for the child's welfare and future.

Do I have to name a guardian for my child in my will?

It is not required, but it is usually recommended to name a guardian for your child in your will. The guardian would be entrusted with the care of the child in the event of either parent's death.

In such cases, you should make sure that you provide detailed arrangements regarding who will have custody and how the guardian's costs will be covered in case they need financial help. Taking time to carefully choose a trustworthy individual can offer you piece of mind that your child is taken care of even when you are gone.

What does it mean to be a guardian?

Being a guardian is an important role that encompasses taking responsibility for someone else. A guardian is legally liable and authorized to make decisions on behalf of the person for whom they are a guardian. This could mean taking care of the finances, making medical decisions or other legal documents, attending to physical needs and emotional support. Guardianships can be assigned in the event of incapacity, disability, injury or illness.

How does a court determine what's in a child's best interest?

When deciding regarding the best interests of a child, courts typically consider factors such as the relationship between the child and guardian, the stability of the guardian's home, the child's education needs, and any risks posed to the child if they are placed in the guardian's home.

The court also investigates any history of neglect or abuse from the guardian. Other important factors include how much time the guardian can dedicate to caring for the child, their mental and physical health, religion, and culture. Ultimately, the court is responsible for determining which arrangements best promote stability and security for the child’s wellbeing.

Guarding Your Child's Future

The role of a legal guardian is a big responsibility and choosing a legal guardian for your children is an even greater responsibility. Your decision should be made only after careful consideration of what's best for your children. The sooner you plan for your child's future in the event of your untimely death, the better.

February 13, 2023 by Jeri K. Augustus