Naming A Guardian For Minor Children In South Carolina
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Frequently Asked Questions
Can both parents name a guardian in their wills?
Yes — and they should. Both parents should ideally name the same guardian. If the parents are divorced, the surviving parent typically retains custody. The named guardian steps in only if both parents have passed away or the surviving parent is unable to serve.
What happens if I don’t name a guardian?
The South Carolina probate court will appoint a guardian based on the best interests of the child. The court’s choice may not match your wishes, and the process can be lengthy and stressful for your children.
Can I name a different person to manage my child’s inheritance?
Yes. You can name one person as guardian of the person (who raises your child) and a different person or professional trustee to manage the financial assets. This separation can be wise if your preferred caregiver is not the best person to handle finances.
If you’re a parent, there’s one estate planning question that matters more than any other: Who will raise your children if something happens to you?
It’s not a comfortable question — but it’s one of the most important decisions you’ll ever make. And the only way to make sure your wishes are honored is to name a guardian in your will.
If you don’t, a South Carolina court will make that decision for you. And while the court will try to act in your child’s best interests, the person they choose may not be the person you would have chosen.
Parents throughout Columbia, Lexington, Richland County, and communities across the South Carolina Midlands often include guardianship planning as one of the most important parts of their estate plan.
Here’s everything you need to know about naming a guardian for your minor children as part of your estate planning in South Carolina.
What Is a Testamentary Guardian?
A testamentary guardian is a person you name in your will to serve as the legal guardian of your minor children if you pass away. Under SC Code § 62-5-202, a parent may appoint a guardian for their minor child by will.
There are two types of guardianship to consider:
- Guardian of the person — the individual who will physically care for and raise your child (housing, education, daily needs, emotional support)
- Guardian of the estate (or trustee) — the individual who will manage any financial assets your child inherits
You can name the same person for both roles, or you can name different people. For example, you might want your sister to raise your children because she shares your values and parenting style, but name your financially savvy brother (or a professional trustee) to manage the money.
What Happens If You Don’t Name a Guardian?
If both parents pass away and no guardian has been named in a will, the South Carolina probate court steps in under SC Code § 62-5-207. The court will:
- Consider petitions from family members or other interested parties who want to serve as guardian
- Evaluate each potential guardian based on the best interests of the child
- Appoint a guardian — which may or may not be the person you would have wanted
This court process can be:
- Time-consuming — leaving your children in a state of uncertainty
- Contentious — multiple family members may compete for guardianship
- Inconsistent with your wishes — the court doesn’t know your preferences unless you’ve documented them
Key Takeaway: Naming a guardian in your will is the only way to ensure your voice is heard in deciding who raises your children.
How to Choose the Right Guardian
Selecting a guardian is a deeply personal decision. Here are the key factors to consider:
Values and Parenting Style
Does this person share your approach to raising children? Consider their views on education, discipline, religion, and daily routines.
Emotional Readiness and Willingness
Have you actually spoken with this person about serving as guardian? It’s essential to confirm they’re willing and able to take on this responsibility before naming them in your will.
Financial Stability
While you can — and should — leave financial resources for your children (through life insurance, trusts, or other assets), the guardian’s own financial stability matters. Can they accommodate additional children in their home and daily life?
Age and Health
Consider whether the potential guardian’s age and health will allow them to care for your children throughout their minority. A 75-year-old grandparent might be a loving choice but may not be practical for raising a toddler.
Location
Will your children need to relocate? Moving away from their school, friends, and community can add trauma to an already difficult situation. If possible, choose someone who lives nearby — in Columbia, the Midlands, or at least within South Carolina.
Relationship with Both Parents
If you’re divorced, consider whether your chosen guardian has a positive relationship with your child’s other parent. This can reduce conflict and make the transition smoother. For more on how divorce affects these decisions, see our guide on updating your estate plan after divorce.
Naming Primary and Alternate Guardians
We always recommend naming both a primary guardian and at least one alternate guardian. Life circumstances change — your first choice may move away, experience health problems, or become unable to serve when the time comes. An alternate ensures there’s always a backup plan.
Guardianship and Divorced Parents
If you’re a divorced parent, here’s what you need to know:
- If you pass away, the surviving parent typically assumes full custody — even if you had primary child custody in South Carolina. The guardian you name in your will would only take effect if the surviving parent is also deceased, incapacitated, or determined to be unfit.
- If both parents have passed away, the guardians named in each parent’s will may conflict. This is why it’s important for divorced co-parents to discuss guardianship preferences and ideally name the same person as guardian.
- If you’ve remarried and are part of a blended family, guardianship becomes more complex. See our guide on estate planning for blended families for strategies.
Protecting Your Children’s Inheritance
Naming a guardian ensures your children are physically cared for — but you also need to protect their financial future. Here are the best approaches:
Create a Trust for Your Children
A trust allows you to:
- Specify how and when your children receive their inheritance
- Name a trustee to manage the funds responsibly
- Set conditions — for example, funds for education, healthcare, and living expenses until age 25, with the remainder distributed at age 30
This is far more protective than leaving assets directly to a minor child, which would require a court-appointed conservator. Learn more about how trusts work in our wills vs. trusts guide.
Life Insurance
A life insurance policy can provide the financial foundation your children’s guardian will need. The proceeds can be directed into a trust for your children, ensuring the funds are managed according to your wishes.
Many parents also use trusts and other estate planning tools to control how assets are managed and distributed over time.
Give Your Children the Protection They Deserve
Naming a guardian is one of the most loving things you can do as a parent. It ensures — no matter what happens — your children will be raised by someone you trust, in a way that reflects your values.
Attorney Carrie Warner and the team at Warner Law work with parents throughout Columbia, South Carolina and the Midlands to create estate plans that protect what matters most: your children.
Ready to name a guardian and secure your children’s future? Schedule a consultation with Warner Law today.
This article is for informational purposes only and does not constitute legal advice. Every family law case is unique. Contact Warner Law to discuss your specific situation.
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My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.