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JPEsq., Lawyer
Category: Family Law
Satisfied Customers: 5106
Experience:  Published articles on family law, featured in several publications for successful trial work.
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If my will specifies a first choice and second choice for the

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If my will specifies a first choice and second choice for the guardian of my child, what would happen if (1) I died, (2) my first choice took guardianship of my child, and (3) my first choice later died? Would guardianship of my child go to my second choice or to the person specified in the will of my first choice?

Even if you name a guardian in your will, there is no guarantee that this will be followed. A lot of people refuse to believe this is the case, but the truth is that you are just stating what you would like to see happen... the court does not have to follow it. But the parent's wishes to carry a lot of weight with the court, and are usually followed.

To answer your questions, if the first choice died, it would depend on what had happened between the time they took guardianship and the time they died. It would also depend on the ongoing relationships of the children with your 2nd choice and with the guardian's choice. Basically, at that point, the court would just enter its usual "best interests of the child" standard, and one of the factors in that determination is what you as the parents had wanted. But it would depend on how much time had passed and how old the children were at the time. Their wishes if they are teenagers would probably override their deceased parents wishes at that point.

Customer: replied 5 years ago.
I sent a follow-up question earlier, but it seems not to have gotten into the system. Under what circumstances might a court deny an uncontested guardianship of a young child?
The court will look at all the circumstances surrounding the guardianship. There is no one set of circumstances, but generally, if the court determines that a guardianship is not in the child's best interests, then it will be denied. Since the parents would have consented, it would have to be a problem with the potential guardian. In the case of a post mortem guardianship... the most common issue is that circumstances have changed dramatically from the time the will was written.
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