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Can I appoint a guardian for my minor child in my will?

| Jan 25, 2021 | Wills |

A Last Will and Testament can be a powerful estate planning tool in New York. Your will can dictate what happens to your property after you pass and can leave your last wishes to your family.

Your will can also appoint a guardian for your child or children if they are minors, so establishing a will early can help you plan for your family’s wellbeing in case something happens to you.

Guardianship

If you have a minor child, you can name a guardian for that child in your will, but you typically may only do so if you do not have a spouse, co-parent or other legal guardian for the child already in place when you pass.

If you name a guardian in your will, the Surrogate’s Court will still need to approve of your appointment, so it is important to choose someone appropriate to take over your parenting duties. If your child is over 14 years old and of sound mind, a court will take into account the preferences of your child when making this ruling.

If you do not name a guardian for your child, the Surrogate’s Court may name one for you if you leave him or her behind without a plan.

Considerations

Your will remains confidential until after your death when either a probate or small estate court (depending on the value of your estate) will make it available to the public. Create your will carefully and then file it in the appropriate Surrogate’s Court. In some counties, you will need to have the court keep your will in a vault until your death. If your county does not require this, you will still want to keep your will in a safe place where others cannot tamper with it and where the appropriate parties can easily access it after your death.

Remember that it is possible for others to tamper with your will. For example, someone could remove staples and add or remove pages of your will without your knowledge. This is why it is essential, especially when leaving wishes to care for your family, that your will is safe, secure and accessible.

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