Naming a Guardian for Minor Children in Your Vermont Will

If both parents die without naming a guardian, the Vermont Probate Division decides who raises your children. The court does its best — but "best interests of the child" as determined by a judge is not the same as your informed choice as a parent.

A guardian nomination in your will is the single most important provision for parents of minor children. No other estate planning document can do this.

How Guardian Nominations Work in Vermont

Under 14 V.S.A. § 2656, a parent may nominate a guardian for their minor children within their Last Will and Testament. The nomination is not self-executing — the Probate Division of the Superior Court retains final authority to appoint the guardian, guided by the best interests of the child.

However, a parent's testamentary nomination carries enormous weight. Courts routinely honor parental nominations unless there is a compelling reason not to — such as evidence of unfitness, a conflict of interest, or the child's own objection.

If the child is 14 or older, they have a statutory right to express their own preference for guardian using Form 700-00078PMG. The court can overrule the child's choice for cause, but the preference is part of the record.

Custodial vs. Financial Guardianship

Vermont distinguishes between two types of guardianship:

Custodial guardianship covers the physical care and custody of the child — where they live, what school they attend, medical decisions, daily supervision.

Financial guardianship (guardianship of the estate) covers the management and protection of the child's inherited assets. If a minor inherits money or property, the financial guardian manages those assets until the child reaches 18.

You can name the same person for both roles, or name different people. Some families choose a relative who is great with kids but not great with money — and pair them with a financially savvy co-guardian or trustee for the estate.

Practical Considerations

Name a backup. Your first-choice guardian may be unable or unwilling to serve when the time comes. Name at least one alternate in your will.

Talk to them first. A guardian nomination is legally valid even if the nominee hasn't agreed in advance. But discovering you've been named guardian of three children through a probate filing is not the conversation anyone wants. Discuss it before you put it in writing.

Consider geography. If your nominated guardian lives in another state, your children may need to relocate. This affects schools, friendships, extended family access, and the child's emotional stability during an already devastating time.

Address financial support. Guardianship is a physical and emotional commitment, but it's also financial. Life insurance proceeds, a testamentary trust for the children's benefit, or designated assets can ensure the guardian has resources to provide for your children without bearing the entire financial burden personally.

Both parents should nominate. If both parents have wills, each should nominate the same guardian. Conflicting nominations between parents' wills create unnecessary litigation and delay.

Unmarried parents: If you are not married to your child's other parent, your nomination is only relevant if the other parent also dies or is unable to serve. A surviving parent — whether custodial or not — has superior legal rights to any nominated guardian.

What Happens Without a Nomination

If neither parent nominates a guardian, interested parties (grandparents, aunts, uncles, family friends) can petition the probate court for appointment. Multiple petitions can result in a contested hearing where the judge evaluates each candidate.

This process is expensive, stressful, and can divide families at the worst possible time. Your children may end up in temporary foster care while the court sorts it out.

A single paragraph in your will — naming a guardian and a backup — prevents all of this.

The Vermont Basic Estate Planning Kit walks you through the guardian nomination process and helps you think through the practical factors most parents overlook.

See more Vermont guides →