Writing a will and appointing guardians for minor children is an extremely important process in California, but it can also be challenging.
It is difficult to consider these questions while we are young and healthy. In California, if a couple does not leave a will, the legal reality exposes our loved ones to a long and exhausting process in which the state intervenes, and a judge determines who will serve as the guardian of minor children. Until a decision is made, children may be placed in foster care.
It is important to note that the child’s best interests are the court’s priority, and there is no intention to leave children in foster care. The state aims to conclude the guardianship process as quickly as possible. Until then, the state has a duty, as it sees it, to protect and supervise the minor.
Common Questions and Answers
1. My children are not U.S. citizens and do not have green cards. Do I still need to appoint guardians for them?
Yes. It is important to appoint a guardian even for minor children who hold only a visa.
2. I have a sister who lives in San Francisco. If I don’t appoint her as a guardian, can she take the children?
Guardianship is not automatically granted to family members just because they are relatives. It is important to formally appoint a guardian and specify your sister’s name, even if she lives nearby. Courts will review each guardianship individually, based on the child’s best interests. If there are no objections and your sister accepts the appointment, she is likely to be approved. If she lives nearby, she may petition the court for an urgent appointment, and the judge will decide.
3. Could my children end up in foster care if I haven’t appointed guardians? How long would they be there, and what is the process if there is no will?
Yes. The state must supervise the minor until a guardian is appointed. The process length varies depending on background checks, objections to the appointment, family consensus, the child’s residence, and the child’s preferences if they are 12 or older. The process can take anywhere from a few days to approximately 30–45 days.
4. I wrote on a piece of paper who I want to care for the children if something happens to us. Is this legally valid?
Yes. Parents can designate guardians in a separate written document, even outside of a will. This designation can apply to permanent guardianship and does not require witnesses to be valid. California courts will consider such a document as an expression of the parents’ wishes when determining the best interests of the child.
5. I made a will in another country that includes provisions for a proposed guardian. Is it valid in California, or should I also make a will here?
A will legally executed in another country may be recognized in California, but it is strongly recommended to also have a will in California in English. Both wills should align and not contradict each other. California law differs, especially regarding guardianship. If the proposed permanent guardian lives out of state, it is important to appoint a temporary guardian near the children in California. California law may favor appointing a single guardian rather than a couple, for practical reasons such as background checks and document signing.
6. Can I appoint a friend to take the children out of state if something happens, or does the appointed guardian have to be local?
A permanent guardian does not have to live in California, but it is recommended that a local guardian be available temporarily to care for the children until the permanent guardian can officially assume responsibility. In exceptional cases, the court may allow a temporary guardian to take the children out of state, but the children may need to be returned or remain under supervision until the court finalizes the appointment of the permanent guardians.
7. Does the will need to be filed with the court, and must it include the guardian’s ID numbers?
The will is filed after the testator’s death in the Probate Court for the appropriate county. While both parents are alive, the will should be kept by the parents. Wills become public documents once filed, so it is not customary to include identification numbers.
8. Can I appoint a relative from another state as a temporary guardian, and can family members stay with the children?
It is recommended that the temporary guardian live nearby and be able to assume responsibilities quickly. Appointing a relative from another state can be a secondary option, but the will should include provisions allowing permanent guardians visits or stays with the child. The court will consider the child’s best interests when approving such arrangements.
9. We just moved and don’t know anyone who could serve as a temporary guardian. What should we do?
In this case, it may be appropriate to wait a few months before finalizing the will or additional decisions, such as appointing an estate executor. California allows temporary guardians to be appointed via separate documents. If you meet another parent locally and the children form a bond, that parent can be appointed as a temporary guardian for emergencies. Appointments can be updated later if needed.
These are summaries of the most common questions regarding guardianship appointments. It is important to appoint a guardian who can act even if both parents are alive but temporarily unavailable or unable to make decisions.
In addition to a will and guardianship appointments, it is recommended to prepare other documents such as: advance healthcare directives, financial powers of attorney, and, if needed, a trust.
The author is an attorney practicing in the areas of estate planning, nomination of guardians, wills, and inheritance planning for international clients.
The information above does not constitute legal advice or a substitute for legal counsel. For advice regarding your specific situation, please consult a qualified attorney. Reading this summary does not create an attorney–client relationship with the author or her firm.