No parent wants to think about it. But one of the most important things you can do for your children is plan for the unthinkable. If something were to happen to you — whether suddenly or after a long illness — who would care for them? And just as importantly, what legal steps can you take now to help make sure the right person is in place?
In New Hampshire, parents do have important legal tools to help protect their children. But those tools have limits, and it is important to understand what they can and cannot do.
Why Naming a Guardian in Your Will Still Matters
If you die without a will in New Hampshire — what is known as dying intestate — you leave major decisions up to the court. That can include who should serve as guardian for your minor children if no other parent has the superior legal right to custody.
A valid will allows you to nominate a guardian for your minor children. That nomination is important. It gives the court clear evidence of your wishes and can carry substantial weight.
But parents should understand an important limitation: naming a guardian in your will does not automatically guarantee that person will receive custody in every situation. A will is a critical part of the plan, but it is not the only factor.
That is why it is still essential to put your wishes in writing and make them legally formal. A verbal understanding with a family member is not enough.
Choose Your Guardian Carefully — and Have the Conversation
Choosing a guardian is one of the most personal decisions you will ever make. It is not just about who loves your children. It is about who can realistically raise them.
You may want to consider things like age, health, financial stability, parenting style, location, and the existing relationship that person has with your children. Someone may be loving and well-intentioned, but still not be the best practical fit.
It is also important to ask the person before naming them. Many people skip that step. A guardian who is surprised by the nomination — or privately unsure whether they can take on that role — may not be prepared when the time comes.
You should also consider naming an alternate guardian. Life changes. People move, become ill, or face family or financial changes of their own. A backup can be just as important as your first choice.
What If the Other Parent Is Absent, Irresponsible, or Barely Involved?
This is one of the most common questions parents ask.
A parent may say: “My child’s other parent is rarely around, has been irresponsible, or has not really acted like a parent. If something happens to me, I want my sister, my parents, or another relative to raise my child.”
The hard truth is that a will does not automatically override the surviving parent’s rights.
If the other parent is still living and still has legal parental rights, that parent will generally have the superior claim to custody if you die — even if you believe another family member would be a far better caregiver. In other words, you cannot simply name someone else in your will and assume that choice will control.
That does not mean your nomination is meaningless. It may still matter greatly. But if your family wants someone other than the surviving parent to care for your child, they would likely need to go to court immediately and seek emergency relief, such as an emergency guardianship. That is a serious step, and the burden is high.
It is not enough to show that another relative is more responsible or would provide a better home. The court would typically need strong evidence that the surviving parent is unfit or that placing the child with that parent would create a real risk of harm.
In some situations, the better course is to address the issue while you are still alive. Depending on the facts, that may mean consulting with a family law attorney now about whether there is any basis to pursue restrictions on the other parent’s rights or even termination of parental rights. But that is also a very serious process with a high legal burden.
The key point is this: a will is essential, but it is not a magic document. If you have serious concerns about the other parent, it is important to get legal advice now rather than assume the issue can be fixed later.
What If Both Parents Have Different Wishes?
If both parents are living and share parental rights, the issue of a testamentary guardian often does not come into play unless both parents die or one parent’s rights have already been legally curtailed.
If both parents are making estate plans, it is wise to discuss these issues together and try to be consistent. Conflicting nominations can create confusion and, in the worst case, more conflict for the family and the court.
For separated or divorced parents, the legal situation can be especially sensitive. The existence of a prior parenting order, ongoing disputes, or concerns about a parent’s fitness can all matter. These are not issues to leave to assumptions.
Strengthen Your Nomination with a Letter of Instruction
A will can state who you want to serve. A letter of instruction can help explain why.
While not legally binding, a letter of instruction can be a very helpful companion document. It can provide guidance to the court, to your chosen guardian, and to the people handling your affairs.
A thoughtful letter might address:
- Your children’s routines, medical needs, and important relationships
- Your values around education, religion, and discipline
- Why you chose this particular guardian over others
- Specific concerns about other family members who might contest the guardianship
- Financial guidance for how you would like assets used for your children’s upbringing
This kind of letter does not replace a will, and it does not override legal parental rights. But in the right situation, it can provide very helpful context.
Use a Trust to Protect Your Children’s Financial Future
The person who raises your children is not necessarily the same person who should manage money for them.
That is why many parents use a trust as part of their estate plan. A properly drafted will can create a testamentary trust, or you may choose a separate revocable living trust. Either way, the idea is the same: assets for your children can be managed by a trustee under rules you set, rather than passing outright at age eighteen.
This allows you to separate caregiving from financial management when appropriate. It can also let you direct how funds should be used for things like housing, education, medical care, and support, and when children should receive control of the remaining funds.
Keep Your Documents Updated
Estate planning is not something you do once and never revisit.
You should review your plan after major life events such as the birth of a child, divorce, remarriage, the death or incapacity of a named guardian, or a major financial change. Even without a major event, it is wise to review your documents every few years.
Outdated documents can create uncertainty and conflict at exactly the wrong time.
Do Not Leave This to Chance — Talk to Cohen & Winters
Protecting your children is the most important job you have. The legal tools to do it are available to you right now — but only if you use them. A will with a clear guardian nomination, a thoughtful letter of instruction, and a properly structured trust can make all the difference between your children being raised by the right person and a court making that choice for you.
At Cohen & Winters, our New Hampshire estate planning attorneys help families put the right protections in place — clearly, carefully, and with your children’s futures in mind. Do not wait for the right moment. Schedule a consultation with us today and take the first step toward real peace of mind.