Naming a Guardian for Your Children in Your Oregon Will

By Marina J. Elliott, Attorney, Rose Elder Law

In Oregon, you name a guardian for your minor children in your will, or in another signed writing. If both parents die or can't care for the children, the court decides who becomes guardian. Your written choice carries real weight with the judge. Without one, the court picks without hearing from you.

Most parents I meet already know who they'd want to raise their kids. Very few have written it down, and that matters. For concerned parents, making your wishes known is not optional; it is imperative.

Key takeaways

• A will is the most common place to name a guardian for minor children in Oregon.
• The court still makes the appointment. Your nomination tells the judge what you wanted.
• The person who raises your kids and the person who manages their money can be different people.
• Without a trust, money left to a minor usually ends up in a court-supervised conservatorship until age 18.
• Name a backup guardian, and review your choice every few years.

What a Guardian for Minor Children Does in Oregon

A guardian steps into the parent's shoes for the day-to-day. That means where the children live, where they go to school, their medical care, and the thousand small decisions in between.

A guardian is needed when no parent is able to care for a child. Usually that's because both parents have died. It can also happen when the only living parent is seriously ill, incapacitated, or otherwise unable to act.

Oregon's guardianship laws are in ORS chapter 125. A guardian for a minor is appointed by the circuit court in the county where the child lives. The court supervises the guardianship, and the guardian files reports with the court.

One thing a guardian does not automatically do is manage a large inheritance. That's a separate job. We'll come back to it, because it's where a lot of plans fall short.

What Naming a Guardian in Your Will Does (and Doesn't Do)

Naming a guardian in your will is a nomination, not an automatic appointment. A judge still has to approve the person, and the judge's job is to look out for the children's best interests.

In practice, courts give a parent's written choice a great deal of weight. Judges are reluctant to second-guess a parent who thought it through. Unless there's a real problem with the person you named, your choice is very likely to stand.

A few things your nomination won't do:

• It won't override a living parent. If you're divorced and the other parent is alive and able to care for the children, that parent generally has custody. Your will doesn't change that. If you have serious concerns about the other parent, talk with us. That's a different conversation.
• It won't help if nobody can find it. Tell the person you named. Tell your family where your documents are.
• It won't cover the short term by itself. A guardianship takes time to set up in court. Oregon also lets a parent delegate parental powers to someone else for up to six months with a signed power of attorney (ORS 109.056). That can bridge a hospital stay or a deployment.

Without any nomination, the court still appoints someone. It just has to work out who without your input. Relatives who disagree can end up arguing it out in a courtroom.

Who Raises Them vs. Who Manages the Money

Oregon separates caring for a child from managing a child's property. Many parents don't realize this until they're sitting across from me. You can name the same person for both jobs, or different people.

	Guardian	Conservator	Trustee of a children's trust
What they handle	Daily care: home, school, health	Money and property left to the child	Money and property held in the trust
How they get the job	Court appointment	Court appointment	Named in your trust. No court appointment.
Court supervision	Yes, with reports to the court	Yes, with yearly accountings	No court supervision
When it ends	Usually at 18	At 18. The child gets what's left, all at once.	When your trust says: 25, 30, in stages, or another age you choose
Who decides the rules	Oregon law and the court	Oregon law and the court	You

Why split the jobs? The person who'd be the warmest, steadiest parent isn't always the best with money. Your sister might be wonderful with your kids and hopeless with a checkbook. Your brother might be the reverse. A plan can use both of them.

How to Choose a Guardian for Your Children

There's no perfect choice. There's the best choice you can make today. Parents get stuck trying to find someone flawless, and the will never gets signed. Don't let that happen.

Questions worth asking yourself:

• Do they share your values? Faith, education, discipline, how they treat people.
• Do they have the energy? Grandparents are often the first thought. Think honestly about age and health 10 years from now.
• Where do they live? Moving would mean a new school and new friends on top of a loss. Sometimes that's worth it. Sometimes it isn't.
• What's their household like? A spouse or partner, their own kids, room in the house.
• Will they keep your kids connected to both sides of the family?
• Would they say yes? Ask them before you name them.

Naming a couple is common, but think about what happens if they split up. You can name one person and say whether their spouse is included. You can also name a backup in case your first choice can't serve.

One more thing: money shouldn't drive this choice. If the best person to raise your kids can't afford to, the fix is the money side of your plan, not a different guardian.

How to Name a Guardian in Your Oregon Will, Step by Step

1. Pick your first choice and a backup. Write down why, even just for yourself. It helps if you ever revisit the decision.
2. Talk to them. Make sure they're willing. Share anything they'd need to know about your kids.
3. Decide who manages the money. Same person or someone else? See the next section.
4. Put it in a properly signed will. In Oregon, a will must be signed by you and by two witnesses (ORS 112.235). A homemade or online form can work, but small signing mistakes are common, and they're the kind nobody finds until it's too late.
5. Coordinate with the other parent. If you're married or co-parenting, it's best if both of your wills name the same people. Two wills naming two different guardians gives a judge a puzzle to solve.
6. Tell people where your documents are. Your guardian, your executor, and a close family member should know.
7. Review it every few years. People move, marry, divorce, get sick, and drift apart. So do your kids' needs. A good rule is to look again every three to five years, and after any big life change.

Don't Forget the Money: A Trust for Your Children

This is the step most parents skip. If your will leaves everything to your kids outright, and they're under 18, a court-supervised conservatorship usually has to be set up to hold it.

That's slow, and it isn't cheap. Setting up a conservatorship in Oregon commonly runs about $5,000 to $6,500. Yearly accountings to the court start around $1,500 and are often considerably more. Then, at 18, your child receives whatever is left, all at once.

The same problem shows up outside your will. If you name your minor children directly as beneficiaries of your life insurance or retirement accounts, that money can land in a conservatorship too. Beneficiary designations don't follow your will.

The better approach for most families is a trust for the children, either in a revocable living trust or set up through your will. Keep in mind, that a trust set up through a will does not exist until the will goes through probate which is public and takes time and money. A revocable living trust avoids probate. Your trust can:

• Name a trustee you choose, with no court supervision
• Pay for the children's needs: housing, school, health, activities
• Help the guardian with the real costs of raising your kids, like a bigger car or an addition to the house
• Hold the money until an age that makes sense, such as 25 or 30, or release it in stages

For smaller amounts, Oregon's Uniform Transfers to Minors Act (ORS chapter 126) is another option. It lets a custodian hold money for a child until 21, and in some cases longer.

Frequently Asked Questions

Do I need a will to name a guardian for my children in Oregon?

A will is the most common and reliable place to do it. Oregon also allows a nomination in another signed writing, but putting it in your will keeps everything in one place and makes it hard to miss.

Can I name a couple as guardians?

Yes. Think about what you'd want if they separate, and say so in your will. Many parents name one person and add their spouse only while they're married.

What if I don't want a certain family member to be guardian?

You can say so. A short statement of your wishes, in your will or a separate letter, helps the judge understand your reasons. Talk with us about how to word it.

Does the guardian have to live in Oregon?

No. An out-of-state guardian can be appointed. Moving the children may add steps, and the court will consider the effect of the move on them.

When should I update my guardian choice?

After a death, divorce, move, or falling out, and otherwise every three to five years. Your kids' needs change as they grow, and so can the right person for the job.

Let's Make Sure Your Kids Are Covered

Nobody likes thinking about this. But an hour with us now means your children are raised by the people you chose, with money that's there for them when they need it. We'll help you name a guardian, set up the right trust, and check that your beneficiary designations match.

Schedule a consultation with Rose Elder Law in Lake Oswego. To schedule a consultation, call us at 971-865-3171 or contact us online.

About the author. Marina J. Elliott is an elder law attorney at Rose Elder Law in Lake Oswego, Oregon. She started in business and tax law before turning to elder law.

This article is general information about Oregon law. It isn't legal advice for your situation, and reading it doesn't create an attorney-client relationship. Attorney advertising.