Naming a Guardian – Do You Need Court Approval?

If you have minor a child, or children, an important issue you’ll need to address in your estate plan is determining who will take care of your children if you suddenly pass away. This person would serve as a “guardian” for your children until they become legal adults. A question I routinely get asked by clients is whether the guardian they prefer to name will need to be approved by a court. Here’s the answer: it depends.

A major factor that will influence a guardianship issue is where you reside. If you live in Maryland, you can actually name a guardian in your Will and not have to worry about court approval. Specifically, Maryland law states that “unless prohibited by agreement or court order, the surviving parent of a minor may appoint by Will one or more guardians and successor guardians of the person of an unmarried minor. The guardian need not be approved by or qualify in any court.” See MD Est & Trusts Code § 13-701 (2013). Washington, D.C. has a similar provision stating that “a surviving parent may appoint a guardian of his or her infant child by Will.” See D.C. Code 21-102.

If you live in Virginia, it’s a little different. The Commonwealth allows appointment of a guardian through a Will, without court approval, but only as long as there is no surviving natural guardian. See Va. Code § 64.2-1701. A “natural guardian” is the mother or father of the child.

This leads to an important question – what if someone has two Wills with different guardians named in each? Once again: it depends.

You have the right to change your Will at any time. Typically, there are two ways to change a Will. The first way is to amend your Will through something called a “codicil.” Basically, a codicil is an slight change to your existing Will. Most everything in your Will remains unchanged, but one or more of its provisions are changed because of the codicil.

The second way to change your Will is to simply make an entirely new document and “revoke” your current Will. But keep in mind, the Will has to be executed with the same formalities as your first Will. The new Will, once it is officially signed, automatically revokes the prior Will as a matter of law.

So, if two Wills are discovered, the controlling Will is the one that was executed most recently. This means the guardian named in that later Will is likely to be recognized and have the authority to take care of your minor children.

It’s advisable to have a list of possible guardians whom you know and trust, just in case your first choice passes away or is unable to assume the guardianship role. It may also be advisable to list out individuals verses couples depending on your situation. Additionally, it is really important to let people you have named know they are named so they can get the proper education in case something does happen. To learn more about the rights you have available, and ways to get your named guardians educated, sit down with an experienced estate planning attorney in your area.