Have you ever stopped to ask yourself who would raise your children if you and the other parent couldn’t? It's a question most parents push to the back of their minds, buried beneath school pickups, pediatrician appointments, and the daily rhythm of family life. Yet it is one of the most consequential questions a parent can leave unanswered. Under New York law, if both parents of a minor child pass away or become unable to care for that child without a guardian already designated, the decision of who raises that child does not automatically fall to a grandparent, an aunt, or a close family friend. It falls to a judge who has never met your family.
What a Guardianship Designation Actually Does
A guardianship designation, made through your will, allows you to name the person you trust to step into your shoes and raise your child. New York's Surrogate's Court Procedure Act, Article 17, governs guardianship proceedings for a child, and courts generally give strong weight to the person a parent named, so long as that person is fit to serve. Without this designation, relatives may end up contesting custody in court, sometimes for months, while your child's living situation remains unsettled.
Guardian of the Person vs. Guardian of the Property
I always explain to my clients that guardianship covers two separate roles. A guardian of the person makes the daily decisions, such as where your child lives, attends school, and receives medical care. A trustee manages any money or assets your child inherits until they turn eighteen. These roles can go to the same person or to two different people, depending on who is best suited for each responsibility. A sibling with a stable home might be the right choice to raise your child, while a financially disciplined relative might better manage an inheritance.
Naming Backup Guardians
That is why I advise my clients to always name at least one successor guardian. Circumstances change, and your first choice may become unavailable, unwilling, or unfit by the time the designation is ever needed. A well-drafted will accounts for that possibility so your children are never left without a clear answer.
Why This Cannot Wait
Many parents assume this is something to handle later, once the children are older or once other estate planning is complete. But guardianship designations are only effective if they exist before they're needed, and no parent can predict when that moment will come. I have guided many New York families through this exact process, and the relief it brings is immediate: knowing your children will be raised by someone you chose, not someone a court happened to select.
If your children do not yet have a legal guardian designated in your will, contact us today at (347) 766-2685 for a free phone consultation.
Contributed by Roman Aminov, Esq, a Queens estate attorney in New York City.
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