Appointment of Guardian for Children in New Jersey
Updated: Aug 21
One of the most important decisions a parent can make and one that belongs in every estate plan.
No parent wants to think about not being there for their children. But planning for that possibility is one of the most loving things you can do. In New Jersey, naming a legal guardian for your minor children in your estate plan ensures that if the unthinkable happens, the people you trust, not a court, decide who raises your kids. |
— THE BASICS
What Is a Legal Guardian?
A legal guardian of a minor is a person appointed to care for a child's personal wellbeing and, in some cases, their finances, when a parent is no longer able to do so due to death or incapacity. In New Jersey, guardianship of a minor can cover two distinct roles: guardianship of the person, which encompasses decisions about the child's health, education, and upbringing, and guardianship of the property, which involves managing any assets or finances the child may inherit.
It's important to note that in New Jersey, guardianship of a minor does not automatically terminate parental rights unless explicitly ordered by the court. The goal is to ensure your child is protected and cared for, not to remove any existing legal relationships.
— HOW IT WORKS IN NJ
Appointing a Guardian for Minor Children in New Jersey
In New Jersey, a parent can designate a guardian for their minor children through their Last Will and Testament. The appointment of guardian for children in New Jersey is one of the most important steps in the estate planning process and one of the strongest reasons every parent needs a will, regardless of the size of their estate.
Once a parent passes away, the person named as guardian in the will must file a petition with the County Surrogate's Court to be formally appointed. The court gives significant weight to the parent's designation, but it does retain the authority to make the final determination based on the best interests of the child. The named guardian must be willing, qualified, and ready to serve.
IMPORTANT TO KNOW Even if you name a guardian in your will, that person does not automatically assume legal guardianship. They must file a written petition with the Surrogate's Court, and the appointment must be confirmed before they can legally act on your child's behalf. |
If a parent passes away without naming a guardian, the court will decide who cares for the children without any guidance from you. That decision may not reflect your wishes, your values, or your family's circumstances.
— CHOOSING WISELY
How to Choose the Right Guardian
Choosing a guardian is deeply personal. Before naming anyone in your will, have an honest conversation with the potential candidate because guardianship is a significant responsibility, and you want to be sure they are willing and prepared to take it on. It is also a good idea to name an alternate guardian in case your first choice is unable or unwilling to serve when the time comes.
Consider factors like the candidate's values and parenting style, their relationship with your children, their location, their financial stability, and whether their own family situation is a good fit. You can also include a letter of intent alongside your will, a personal document explaining your wishes for your children's upbringing, that gives your guardian meaningful guidance even though it doesn't carry legal force.
New Jersey law also allows you to specifically name individuals you do not want appointed as guardian. A useful option if there are family members you would want to explicitly exclude from consideration.
— PROTECTING THEIR FINANCES
What Happens to Your Children's Inheritance?
In New Jersey, if a minor receives money or property through an inheritance and no trust has been established, those funds must typically be deposited with the Surrogate's Court and held in a supervised account until the child turns 18. At that point, the full amount is released to them, all at once, regardless of whether they are ready to manage it.
Pairing your guardianship designation with a testamentary trust inside your will, or a standalone trust, allows you to set the terms for how and when your children receive their inheritance. You can stagger distributions by age, tie them to milestones like college graduation, or appoint a trustee to manage the funds responsibly on your children's behalf.
It is important to know that an attorney can assist with moving any amounts deposited with the Surrogate's Court or held in a supervised account into a trust to add safeguards to any inheritance received before the child turns 18.
This article is for general informational purposes only and does not constitute legal advice. Estate planning laws vary and individual circumstances differ; consult a licensed New Jersey estate planning attorney before making decisions about your estate plan.
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