Who Has Legal Rights To A Child

Author's picture
| 4 min. read |
Naming a guardian for your child in a will may not be the only way to ensure they're properly cared for in the event of a death. Consider who has legal rights to a child and what you can do to prepare for an untimely passing. 

Although it may be an unpleasant topic, discussing guardianship for your children is an important topic. In the event that a parent passes, who has legal rights to a child? It's critical to understand the law and how it correlates with the creation of your will. Choosing a legal guardian of a child should be a priority for every parent to ensure the safety and wellbeing of their living children. Here is some vital information to review when creating a last will and testament. 

Don't wait. A last will and testament is an important step to take to ensure protection of your children, assets, and other property. Create yours today at wills.com.  

who has legal rights to a child

What Is Guardianship?

Guardianship refers to the legal authority granted to a person who can make decisions on another person's behalf. Typically, a guardian is someone that has been appointed or named in a will to care for a minor under 18 years of age, or an adult who is unable to make decisions for themselves.

If a parent dies, a child needs a guardian named to ensure that the courts carry out the designation. When naming a guardian, make sure he or she has the right qualifications. You should check with the local county clerk's office to see if there are any requirements for being a guardian.

When creating a will, you will want to name at least one person as guardian for any children. This person can be anyone from a family member to a friend. You should also make sure that they understand their role as guardian. For example, if you leave money to a friend but don't specify how much money he/she gets, there could be problems with the court later on.

Does Guardianship Override Parental Rights?

In the case of divorce, many parents wonder what will happen to their children if one passes. While the law can get complex, typically, a surviving parent will automatically have full rights to custody if one parent dies. This is still generally the case if the parent who dies is the named custodial parent. 

It's important to note that parental rights and custody rights are two separate issues. Custody orders typically outline who a child lives with and who makes important decisions on their behalf. Parental rights, on the other hand, can remain intact after the death of a parent and courts will recognize them as the guardians of the child. 

Even if a will names another person such as a family friend or grandparent as guardian, a surviving parent will usually be granted custody unless a juvenile court might see it fit to terminate a parent's rights. 

Different Types Of Guardianship

There are different types of guardianship and levels of guardianship to consider. The levels of guardianship include:

  • Full guardianship - The guardian has full responsibility and authority to make decisions for the child.

  • Limited guardianship - The guardian has limited responsibilities and this is to specific needs like property.

  • Joint guardianship - Guardianship, and other responsibilities, may be split with another person. 

With various guardianship designations, it's important to be well informed on how each assumes responsibility. Further, learn how to avoid a court appointed guardian here

Personal Guardian

A personal guardian is also referred to as a guardian of the person or a custodial guardian. When you name someone as a personal guardian in your will of a child under 18 years old, then you are granting the guardian legal responsibility and care over your child. This includes caring, upbringing and custody of your child if you were to die. In the will, your child would be known as the ward. This is because words are often minor. 

A personal guardian has the same responsibilities as a parent. They may attend to their daily and all long term needs that they have. 

Financial Guardian

As well as naming a personal guardian, you may want to name a financial guardian for your child. A financial guardian is also seen as a property guardian/guardian of the estate. 

With a financial guardian, they have the legal rights to manage the money and property of the child. Usually the financial guardian will also be the personal guardian of the child. Although, some people like to name different people.

Usually, when one parent dies, the surviving parent will automatically become the child's financial guardian. However, if you don't wish for this to occur, then you will need to speak to an attorney about this and state it in your will. If there are no surviving parents, then your named personal guardian will also become the financial guardian. 


A conservator is like a financial guardian. They look after the property and finances of the young child. However, in some states, a conservator only applies to guardians of incapacitated or disabled adults and not children.

An incapacitated adult is an adult that cannot make decisions for themselves because they are in a coma or suffer from a memory illness. A conservator can have multiple responsibilities, from providing education and paying bills and looking after their overall well-being. 

Voluntary Guardianship

A voluntary guardianship still has the obligation to act in the best interests of the ward. In most cases, voluntary guardianship is used when a parent feels that they cannot care for their child at the time being. What is important to remember is that this guardianship is temporary. 

Thus, someone may be named a voluntary guardian until the other parent is fit enough to look after the child. Or until the child no longer needs a guardian, which may happen when they reach a particular age, like 18 years old. 

naming guardianship for children

What Happens When Both Parents Die?

Generally, when a parent dies, the custody of the child goes to the surviving parent. However, if both parents have died, then it is important to name someone in your will to become the child's guardian. If you die and there is no surviving parent for your child and no guardian named, then the courts will decide and choose a guardian for your child. 

A Will Can Protect Your Child

Wills are written documents that tell the courts what kind of guardianship you want for your child. You can write down who you want to be the guardian, how long you want the guardianship to last, and how much money you want left to your child. You can even make special provisions for your child's education. Additionally, there's more information on wills for new parents

Then, when you die, your will becomes part of your probate estate. When the probate estate is settled, the court will distribute the money according to your wishes. 

having legal rights to children

Start Your Will Today

Guardianship is a very important thing to think about. It is important to know who will become your child's guardian and what kind of guardianship they will have. Wills.com helps you to create a will that tells the courts exactly what you want done with your child. Typically, your child will be left to their other surviving parent, as legally they should already have involvement in their child's care. Although, in some situations, this isn't possible, and a named guardian can obtain legal rights over the child. 

We hope you have found this article useful and understand who has the legal rights to your child once you have died. 

Ready to start your will?

Start Your Will

Get started on your state-specific legal will with no further delay!

By starting your will, you agree to our Terms of Service.