California gives parents the statutory right to name a guardian for their children. If no guardian is named in your will or other estate planning documents, and tragedy strikes, it will be up to the Court to decide who will raise your children. The Court may appoint someone that you would not have chosen yourself.
This issue is especially important when dealing with international families, i.e., parents who are non-citizens of the United States, or who hold dual citizenship’s, or whose closest family members do not live in the United States. In some states, the Court will not name as guardian a person who is not a citizen of the United States.
Courts are reluctant to lose jurisdiction over children in their courtrooms because they want to ensure their safety and care. This may be a problem if you wish your children to return to their/your country of origin. If your child is a citizen of the United States, but not a citizen of your country of origin, a court may be reluctant to grant guardianship to someone who will remove the child from the United States.
Even if your child is a U.S. citizen, you should apply on behalf of your child for dual citizenship in your home country. This will indicate your wish that your child have a connection to your home country. If you wish that your child live in the U.S., but you name a non-citizen guardian, it is highly unlikely that the non-citizen guardian will be permitted to remain in the United States on this basis alone. Parents should speak with a trust attorney about creating a comprehensive estate plan, including guardianship issues. The attorney can explain your rights in CA, including that for parents to name a legal resident of the United States, or a person who would could emigrate or other reasons other than the guardianship of your children.
About the Author: Dustin MacFarlane, Esq.
California Licensed Attorney | Estate Planning Specialist
Dustin MacFarlane is the founder of California Probate and Trust, PC, with over 15 years of experience in estate planning, probate administration, and trust law. Licensed by the California State Bar, Dustin has helped thousands of California families protect their assets and plan for the future.
CA Bar License: Active | Practice Areas: Estate Planning, Probate, Trust Administration | Location: Granite Bay, CA
Why Estate Planning Matters in California
California has unique estate planning laws that differ significantly from other states. Without proper planning, your assets may not pass according to your wishes, and your family could face unnecessary probate court proceedings.
A comprehensive California estate plan typically includes:
- A revocable living trust to avoid probate
- Pour-over will as a safety net
- Advance health care directive
- Durable power of attorney for finances
- Beneficiary designations on retirement accounts and life insurance
How Trusts Work in California
California’s trust law (Probate Code Division 9) governs how trusts are created, administered, and terminated. Understanding these rules is essential for effective estate planning.
Key benefits of California trusts:
- Avoid probate: Assets in a properly funded trust bypass California’s lengthy probate process
- Privacy: Unlike wills (which become public in probate), trusts remain private
- Control: You maintain control during your lifetime and direct distribution after death
- Incapacity planning: Your successor trustee manages assets if you become incapacitated
- Tax planning: Trusts can help minimize estate and income taxes
Need Expert Estate Planning Guidance?
California estate planning law is complex and constantly evolving. Don’t navigate it alone.
California Probate and Trust, PC has helped thousands of California families protect their assets and plan for the future.
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