One of the most important questions for every parent is this: Who will be the guardian of my children if I die before they are adults?

If you have minor children and you were to pass away, then, barring some very extreme circumstances, your children would be raised by the other parent of your children. But what if both parents were no longer alive? Who would take care of your children then?

This is another situation that shows how important proper estate planning is. You can actually designate who you would like to be the guardian of your minor children in your will. This person could be the same person you name as the trustee for your children’s trust, but it doesn’t have to be. You could likewise designate a guardian in a separate document called a declaration of guardian. The advantage of doing this through your will is that it prevents you from having to deal with an additional document. The advantage of making the appointment in a separate document (declaration of guardian) is that the guardianship could take effect if you were to become incapacitated in some way.

But what if you do not have a designated guardian via a will or declaration of guardian? Who would be appointed the guardian of your minor child then?

Without the proper estate planning document in place then the court will make that decision for you using fairly strict rules spelled out in Texas law. A grandparent is the first person that the court looks to to nominate as the guardian. If there is more than one grandparent still alive, then the court must choose which one would be in the best interests of the child.

If no grandparents are still alive or willing and able to become the guardian, then the relative closest in kinship will be chosen. If two or more relatives are of the same degree of kinship (eg. there is an aunt and an uncle), then the court will choose the one it feels is in the best interest of the child. If there aren’t any relatives or none are willing and able to be the guardian, then the court will appoint someone who is not a relative.

No matter what, someone would be appointed as the guardian of your child or children. But if you don’t properly designate who that guardian should be, then the court may end up appointing someone you would not have wanted. It could possibly even be someone you would not have wanted in a million years. Perhaps there are some family members who you believe would not raise your child the way that you would want and/or in an environment that you would want. Perhaps there is even someone outside of your family who you think would be a better parent for your child.

The bottom line is that if you want to make sure the right person is designated as your child’s guardian in case something terrible were to happen to you, then you must have the proper legal document in place ahead of time.