Naming a guardian for a minor child

What Happens When A Custodial Parent Names Guardian in a Will That is Not the Other Parent?

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Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
August 6, 2019

In this article, we answer the question “what happens when an Illinois custodial parent names a legal guardian for a minor child in his or her will that is not the other parent?

When a custodial parent names someone as guardian for their minor child in his or her will, the other parent’s rights are not affected. Surely the custodial parent has the right to name someone of his or her choice as guardian of their minor child in a will, but that is not a legal appointment.

In order to be legally considered the guardian of a minor, a person must be appointed by a court. The first step to legal guardianship of a minor is filing a petition in Probate Court asking to be appointed guardian. Once the petition is filed, a court can proceed on appointing a guardian, with two big exceptions (the second of which is not relevant here).  For more on this, check out our article: Illinois Guardianship Explained.

A court cannot appoint someone else as legal guardian of the minor child if the minor child has a living parent (natural, adoptive, or adjudicated) whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor.

Thus, if the custodial parent passes away and the noncustodial parent who meets those three requirements is still living, the court cannot appoint someone else as legal guardian of the minor child.

Ultimately, a person named guardian of a minor by the custodial parent in a will is not automatically the legal guardian of that minor child until the proper legal procedure has been followed.

If you have been named by the deceased parent in the will, or even if you haven’t, and you believe that the surviving parent is unfit, you may be able to pursue contested guardianship (contested essentially means ‘not agreed’). These circumstances are complicated, so it is almost always advisable to seek the assistance of an attorney.

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