Who this is for: Missouri parents who want to name a guardian for their minor children or who have already done so and want to make sure they did it right. What it covers: The seven most common mistakes Missouri parents make when naming a guardian, what courts do when paperwork fails, and how to lock in your wishes correctly. Why it matters: If you make even one of these mistakes, a Missouri court may not honor your choice and will appoint a guardian you would never have selected. Patrick Nolan is an estate planning attorney at Nolan Law Firm in Kirksville, Missouri.
You can see the question plain as day: who steps in for your child if you are suddenly not here? For Missouri parents, naming a guardian is not just a tough emotional call. It is a binding legal act, and if you get it wrong or skip a step, it can haunt your family later. I have seen too many parents believe their intentions were clear, only to watch the courts unravel everything. It starts with good intentions, ends with regrets. Missouri courts do not care how close you were or who always promised. They follow signed papers, not stories.
The Big Missteps When Picking a Guardian
It is easy to assume everyone is on the same page, but simple talk or leaving instructions in a drawer is how chaos starts. Most disasters happen slowly, then all at once, when families realize nobody nailed down the details.
1. Depending on Verbal Promises or Informal Notes
You can tell your best friend he is the guy. You can even write it out in an email or leave a scribbled letter in a file. In Missouri, none of that holds water in court. If disaster strikes and there is no will on file, nothing executed properly, your wishes get wiped off the table. The probate judge makes the call. They will listen sometimes, but your email or letter is just background noise. Only a clear, signed will or a statutory declaration can make your choice stick. Everything else is wishful thinking.
2. Naming a Single Guardian and Skipping an Alternate
Life is unpredictable. Maybe your sister, the planned guardian, moves across the country or has a health crisis. Courts scramble for a backup when the only nomination bows out. If you did not list an alternate, or rotate your picks as years go by, a complete stranger may end up with your kid. Always choose at least one backup. Make time every few years to see if your picks still make sense.
3. Not Checking Legal and Practical Suitability
Your favorite cousin might be good with kids, but is he over 18? Is he healthy, stable, and reliable enough to step up? Missouri law is blunt here: no adults under 18, nobody of unsound mind, and anyone the court considers unsuitable is off the table, no matter what your will says. If you nominate someone out of state, expect more paperwork, more delays, maybe more expense. Take a hard look at your nominee’s real ability and location.
4. Failing to Warn or Consult the Guardian
If you do not ask the person you want to be guardian, or at least tell them clearly, you are gambling. It has happened plenty: someone opens the will and gets blindsided by the news they are on the hook for a child. Some refuse. Some accept and then collapse under the weight. Your child deserves better than crossed wires. Have the talk, awkward or not. Get a clear yes. Make sure your guardian knows the stakes and is willing to serve.
5. Vague or Unworkable Instructions
Wills that said if Mark and Sue cannot do it, their best friend will, or tied guardianship to conditions like so long as they live in our old house, give Missouri courts trouble. Courts toss out what they cannot enforce. If you pick a couple and they separate, who takes over? Get candid with instructions and spell out what you want in simple, enforceable language. Talk through messy scenarios while there is still time.
6. Forgetting to Split the Jobs: Guardian vs. Trustee
The best guardian is not always a master with money. In Missouri, you can name one person to care for the child and another to oversee inheritance or property. Setting up a trust, picking a responsible trustee, and spelling out limits protects both your child and their future. One person can do both jobs if they are up to it. Most families fare better keeping duty and dollars separate.
7. Letting Years Pass Without Updating Your Will
Families fracture, people move, health fades. The aunt you trusted at age three might not fit when your child is fifteen. Divorce or a falling out can flip old choices on their head. Build a habit: every few years, or after a major life change, check your will. Confirm your choices still stand.
What Courts Do When the Paperwork Fails
When there is no signed will, or the names no longer fit reality, Missouri courts step in. The judge does not know your stories. They follow the law and look for the best interest of the child. If there is a legal nomination in your will, they start there. If not, they sort through relatives, weigh petitions, and sometimes spark years of family battles before picking anyone. I have seen children caught in the crossfire while adults argue over them in court. The process drags on, especially when feuding relatives enter the mix or challenge your choices. If both parents die or become incapable and no sound legal document exists, the court may send the child to temporary foster care until they can sort it out.
Tougher Cases: Blended Families and Strained Relationships
Blended families are common, but the law still works from bloodlines. Step-parents in Missouri do not get guardian status unless there is a legal adoption. If you do not name names in your will, estranged siblings or distant cousins might file their own claims. If yours is a complicated family, spell out every intention. Do not assume the judge will know what you meant.
How to Lock In Your Wishes
Write a Clear Will the Court Can Enforce
There is no shortcut in Missouri. Your wishes only count if they are in a valid will under RSMo 474.310. Work with a lawyer who knows Missouri’s rules. Handwritten notes, phone calls, or casual letters will not protect your family. Sign your name the right way, file it, and keep it where someone can find it.
Pick Backups and Revisit Every Few Years
Always list a backup guardian, sometimes a second. Set a calendar reminder every couple of years, or trigger a review with big life changes: divorce, marriage, relocation, anything that matters.
Be Direct and Honest About Who Is Truly Able
Use legal names, provide up-to-date contact info. If you are naming a couple, explain what should happen if they split up or cannot both serve. Spell out basic hopes for your child’s upbringing, but avoid conditions the court cannot enforce. Measure your guardian’s limits, their finances, their family life, their connection to your child. Pick reality over wishful thinking.
Keep Money and Parenting Roles Separate When It Helps
Most kids are better off if you divide the weight between two people: a guardian for care, a trustee for money. That way, nobody is overloaded and there is less room for trouble. A lawyer can help you set up a trust with clear terms for how money should be used, what counts as necessity, and how education or support gets paid out.
Loop in Everyone Who Matters
Do not make this a secret kept to the grave. Bring the named guardian into the conversation. Let family members know what is coming, and tell your lawyer why you picked the people you did. If you suspect infighting, keep notes on your reasons. Clear, honest conversations now keep your wishes from unraveling when no one can ask you what you meant.
Missouri Parents: Do Not Leave This to Chance
One piece of paper, done right, can spare your child years of uncertainty and legal wrangling. Keep your documents current. Talk to your people. Nail down every name and plan you want to stand. Missouri courts follow the letter, not the story, so make your letter clear.
Frequently Asked Questions
How do I legally name a guardian for my children in Missouri?
Under RSMo 475.045, you name a guardian for minor children in a valid Missouri will. The will must be signed by the testator in the presence of two witnesses who also sign the document, as required under RSMo 474.310. The named guardian does not need to sign the will. Courts give strong weight to a properly executed written nomination. Without a valid will, the court decides based on what it determines is the child’s best interest.
What happens if my named guardian cannot serve in Missouri?
If your named guardian cannot serve, either because they have died, become incapacitated, refused the role, or been found unsuitable by the court, the probate court will look for the next best option. If you named an alternate guardian in your will, the court starts there. If you did not name an alternate, the court considers relatives and other interested parties, which can result in disputes and delays. Always name at least one backup guardian in your will.
Can I name different people as guardian and trustee for my children in Missouri?
Yes. Missouri law allows you to name one person as guardian for your child’s personal care and a different person as trustee to manage any inherited funds. This is often recommended because the best caregiver is not always the best financial manager. Separating the roles provides a check on how the child’s money is managed and reduces the risk of financial mismanagement or conflict of interest.
What makes a guardian nomination invalid in Missouri?
A guardian nomination in Missouri can be invalid if the will itself is improperly executed, meaning it lacks proper signatures or witnesses under RSMo 474.310. The nomination can also be overridden if the court finds the named guardian is under 18, of unsound mind, otherwise legally disqualified, or not in the best interest of the child. Conditions tied to guardian nominations, such as requiring the guardian to live in a specific location, may also be unenforceable.
Should I tell my chosen guardian before naming them in my will in Missouri?
Yes. You should always discuss the role with your chosen guardian before naming them in your will. Guardianship is a significant responsibility, and a person who does not know they have been nominated may be unprepared or even refuse when the time comes. Having the conversation also lets you confirm the person is willing, understands your wishes for your child’s upbringing, and is capable of serving if needed.
How often should I update my guardian nomination in Missouri?
Review your guardian nomination after any major life change: divorce, a named guardian moving or facing health problems, the birth of additional children, or a significant change in your relationship with the named guardian. At minimum, review your will every three to five years. An outdated nomination that names someone who is no longer suitable or available can cause the same problems as having no nomination at all.
