Some states put limitations on guardians that reside in another state.
When you name guardians for your children through your will, it is typically a good idea to name a guardian that lives somewhat close to your child. Nevertheless, in a lot of families, those that have the closest relationships with the children are not necessarily those that live the closest, and it is typically not an issue to name a guardian that lives a little further away.
Despite that, some states place restrictions on guardians named for caring for a child or a child’s property should that guardian live in a different state:
Is Required to Be a Close Relative
In 2 states, an out-of-state guardian can only act as guardian when they are closely related to the minor, like grandparents, siblings, uncles, aunts, nieces, or nephews.
These states are:
Is Required to Appoint an In-State Agent
In a lot of states, the court is going to necessitate an out-of-state guardian to name an in-state agent to acquire legal documentation on their behalf. In other states, the agent is going to be the court themselves. With an in-state agent, it might amount to additional documents for the guardian, however unless you are attempting to choose among an in-state guardian and an out-of-state guardian and they’re qualified equally, this additional burden shouldn’t impact your decision.
These states are:
- District of Columbia
- Nevada (resident agent is called co-guardian)
- New Hampshire
- North Carolina
- Rhode Island (property guardians only)
- South Dakota
- Virginia (property guardians only)
- West Virginia
Is Required to Appoint an In-State Co-Fiduciary
In 3 states, their courts are going to necessitate an out-of-state guardian of property to have an in-state “co-fiduciary.” This doesn’t apply to the guardian of a child, but it is going to apply to the guardian of a child’s property (that is usually the same individual). The out-of-state guardian is going to have to work alongside the co-fiduciary to oversee the child’s property. This might be quite a weight on your intended guardian. So, in the following states, naming a capable guardian that resides in-state is usually a wise decision.
These states are:
- New York
When Naming Guardians for your Children
When you are naming guardians for your children through your will, don’t forget these restrictions. Living in a state that prohibits out-of-state guardians might impact your choice of guardians – especially if the guardian is required to be a family member, or when working alongside an agent or a co-fiduciary is going to be a great burden on the guardian.
When you are unsure who to name as your children’s guardians, or when you want to know more concerning how your state’s restrictions are going to impact your guardian, speak with experienced estate planning lawyer in your state for guidance.
Betsy Simmons Hannibal, A. (2012, October 8). Restrictions on out-of-state guardians for minors. www.nolo.com. Retrieved November 29, 2022, from https://www.nolo.com/legal-encyclopedia/restrictions-out-state-guardians-minors.html
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