[ Wills · Essay ]
Who raises the children,
if you cannot.
Naming a guardian for minor children is the single most important sentence a young parent will ever write. Without it, a Tennessee court chooses, often slowly, sometimes among people the parents would not have picked.
[ 01 ]
What happens without a guardian clause.
When both parents die without naming a guardian, a Tennessee chancery court appoints one. The court applies the best interests of the child standard, weighs petitions from family members, and, in conflict cases, may take months to resolve.
During that time, the children live somewhere temporary. Family members who disagree about who should raise the kids litigate the question, often expensively, often publicly. The court does its best, but the court is making the decision the parents did not.
[ 02 ]
How to choose.
The right guardian is rarely the obvious one. Run through these criteria deliberately, on paper, with your spouse.
- Values and parenting style aligned with yours.
- Age and health that makes the next eighteen years realistic.
- Geography, where the children would have to move and what they would lose.
- Existing relationship with your children.
- Family situation, marriage, other children, capacity to absorb yours.
- Willingness, after a real conversation, not a polite one.
Money is a separate question.
Personal guardian and financial trustee can be different people. The aunt who would raise the kids beautifully may not be the right one to manage a trust account. We split those roles routinely.
[ 03 ]
Specific scenarios we see often.
Naming a couple who later divorces.
If you name 'my brother and his wife,' and they divorce before the guardianship is needed, the document creates ambiguity. Name the individual you trust, with a successor in case the relationship changes.
Naming grandparents.
Sometimes appropriate, often not. Will they be in their seventies when the youngest is fifteen. The guardianship has to remain workable for the full duration.
The conflict between divorced parents.
If you are divorced and the other biological parent is living and competent, that parent typically has the legal claim. The will can express your preferences, and a court may consider them, but the surviving parent is the default. Address this with counsel if it is a concern.
If your will does not name a guardian, the next conversation is the most important you can schedule.
See the Wills practice →[ 04 ]
Stand-by guardianship.
A separate Tennessee instrument, stand-by guardianship, lets a parent name someone to take temporary care of children during the parent's incapacity, before the parent's death. It is most often used for parents with terminal diagnoses or significant medical conditions.
Where appropriate, we draft both the testamentary guardianship for the will and the stand-by appointment, in coordination.
[ 05 ]
Writing the clause that holds.
A clear guardianship clause names the primary guardian by full legal name and address, names at least one alternate, expresses any preference about siblings remaining together, and notes any wishes about religious upbringing or schooling that matter to you.
It does not have to be long. It does have to be unambiguous.
[ The Short Version ]
What to remember.
- Without a guardian clause in the will, a Tennessee chancery court chooses based on the best interests standard.
- Pick the guardian for character first, geography second, and finances third. Money can be solved with a trustee.
- Name a successor. People die, decline, divorce, or move.
- Talk to the named guardian before signing. The single best thing you can do for them is the conversation.
[ Further Reading ]