Do I need a will after having a baby? How to name a guardian

Before kids, many people get by without a will. There is often not much to divide, and state default rules decide who inherits, though those rules skip unmarried partners and vary by state.

Kids change that, and not because of the money.

Do I need a will after having a baby?

The math says the reason is not money. A will is the most common place a parent writes down who should raise the kids if both parents are gone.

Without a nomination, a court still picks a guardian. It will do its best, using input from people who are, in that moment, grieving and not necessarily agreeing with each other.

With a nomination, the court still decides. The difference is that it starts from a name you wrote down. California's Probate Code 1502 says the court "shall give due weight to the nomination." New York's courts say a guardian named in a will gets approved only after the will itself is probated.

That is the difference between your family carrying out a decision you already made and your family arguing about a decision nobody made.

Most people have not done it. Caring.com's 2025 survey of more than 2,500 US adults found 24% had a will, down from 33% in 2022. The same survey says most respondents with kids under 18 had no estate planning documents at all.

Cost is not one of the reasons the survey highlights. The top reasons Caring.com's respondents gave were that it sat low on the to-do list and that they did not feel they had enough assets. Picking the person means saying out loud that you might not be there, and reorganizing the garage is easier than that.

How do I name a guardian for my child?

In most families it goes in a will. It is the route New York's courts describe, and California's statutory will form has a guardian section built in.

It is not the only route. The older version of this page said a will was "the only place" the decision gets recorded. That was wrong.

California lets a parent nominate a guardian "in a writing signed" before or after a guardianship petition is filed (Probate Code 1502). The nomination can be written to take effect only on the parent's death or incapacity.

Texas has a standalone "Declaration of Appointment of Guardian for My Children in Event of Death or Incapacity," published by Texas Law Help. It is signed in front of 2 witnesses and can name a guardian of the person and a separate guardian of the estate, plus alternates.

2 details matter in every version.

The other parent comes first. California's Probate Code 1500 lets 1 parent's nomination work when the other parent nominates or consents in writing to the same guardian, is dead or lacks legal capacity, or would not have to consent to an adoption. A surviving parent generally keeps the kids no matter what the paperwork says.

Backups are built in. The Texas form has lines for a first, second and third alternate. Asking each person ahead of time keeps it from being a surprise in the worst week of their life.

Does guardianship override a will?

A will does not appoint a guardian. A court does, and the name in the will is a nomination the judge weighs.

New York's courts say a Surrogate's Court judge can approve a guardian named in a will only after the will is probated. California's Probate Code 1502 tells the court to give the nomination "due weight."

A surviving parent is a different case. California's Family Code 3040 puts either parent first in line for custody. Under Family Code 3041, before giving custody to a nonparent over a parent's objection, the court must find that parental custody "would be detrimental to the child."

So in California, a will naming a grandparent does not by itself move a child away from a living parent. Guardianship of children is state law, and other states set their own rules.

What happens if you die without a will with kids?

2 separate things happen, and people tend to blur them.

The kids. If both parents are gone and nobody was nominated, relatives or others can ask the court to become guardian. The judge picks with no written word from you.

The money. California's statutory will form puts it plainly. Without a will, what you own "in your name alone will be divided among your spouse, domestic partner, children, or other relatives according to state law," and the court appoints a relative to handle it.

A will can also name someone to manage what the kids inherit. In California's statutory will, that is a "custodian" who manages assets for your children until they reach an age from 18 to 25.

None of this touches the accounts with a beneficiary form, which brings us to the part that quietly undoes everything.

5 Things to Set Up Before Your Baby Arrives

Free guide · The will is item 2

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Does a beneficiary override a will?

Yes. This is the detail that catches people who did the rest right.

FINRA, the brokerage industry regulator, says a transfer-on-death registration "supersedes a will or trust." The federal Office of Personnel Management says of federal employee life insurance: "A will cannot supersede your designation." California's statutory will form says life insurance and retirement plan benefits "may pass directly to the named beneficiary."

So a form you filled out at a job in your 20s, naming a parent, can outrank a will you signed last month. A form naming an ex can too: some state laws cancel an ex-spouse designation after divorce, but federal law blocks that for many employer plans, so don't count on it. The will being newer does not fix it.

The accounts to check:

• Every retirement account, including the old ones at employers you have not logged into since 2019.
• Every life insurance policy, including the group coverage at work. The term life math covers how much of it there should be.
• Anything with a transfer-on-death or payable-on-death instruction attached.

1 wrinkle for married dads. For 401(k)-type plans covered by federal survivor annuity rules, the spouse generally must consent "in writing" before anyone else is named (26 U.S.C. 417). So on that kind of plan, a married dad's spouse generally already has rights an old form cannot quietly take away. That federal consent rule is written for employer plans, not IRAs.

Naming a minor child directly has its own wrinkle, since minors cannot take assets outright. That is the prompt to ask whether a custodian or a trust belongs in the picture, and the conversation where an estate attorney earns the fee.

How much does a will cost?

Here are the prices we could source today.

$0 for California's statutory will. The full fill-in form is printed in Probate Code 6240. It includes a guardian nomination and is built only for California residents.

$0 at FreeWill. Its site says its tools are "totally free" and that it works with 2,400+ nonprofits on planned giving.

$199 and up at Trust & Will. Its pricing page lists a Will Plan "starting at $199" as of Sep 16, 2026.

We could not find an official published figure for attorney-drafted wills, so we are not printing one. Attorney fees vary by state, by firm and by how complicated the family is.

They are price points, not picks. The same money could also go to a dollar a day for the kid for about 6 months, which puts the cost in perspective.

The 3 steps, in order

1. Agree on the guardian. Primary and backup. Ask them first.
2. Get it executed properly for your state, including whatever witnessing or notarization your state wants. An unsigned draft in your Downloads folder is not a will.
3. Audit every beneficiary form you have ever filled out. This is the step everybody skips and the one most likely to change an outcome.

Frequently asked questions

Do I need a will after having a baby?

The main job of a will for new parents is nominating a guardian, not dividing money. Caring.com's 2025 survey found only 24% of US adults had a will, and most respondents with kids under 18 had no estate planning documents.

What should new parents put in a will?

The core pieces are a guardian nomination and someone to manage what the kids inherit. California's statutory will form covers both, with a custodian who manages assets until an age from 18 to 25. Life insurance and retirement accounts follow their beneficiary forms instead.

Does guardianship override a will?

A guardian named in a will is a nomination, and a court makes the appointment. California courts give it "due weight," and New York requires the will to be probated first. In California, a court must find parental custody detrimental to the child before giving custody to a nonparent over a parent's objection.

Can I name a guardian for my child without a will?

In some states, yes. California accepts a nomination in a separate signed writing, and Texas has a standalone declaration of guardian form signed before 2 witnesses. Many states still expect it in a will.

Who gets custody if parents die without a will?

If 1 parent survives, that parent generally keeps custody. If both are gone with no nomination, relatives or others can petition, and a judge appoints the guardian without any written guidance from the parents.

Does a beneficiary override a will?

Yes, for accounts with a beneficiary or transfer-on-death form. FINRA says a TOD registration "supersedes a will or trust," and OPM says a will cannot supersede a federal life insurance designation.

How much does a will cost?

California's statutory will form costs $0 and is printed in Probate Code 6240. FreeWill is free and Trust & Will lists a Will Plan starting at $199 as of Sep 16, 2026. We found no official figure for attorney fees.

Does life insurance go through a will?

Generally no. Life insurance pays whoever is named on the beneficiary form. California's statutory will form says life insurance and retirement plan benefits "may pass directly to the named beneficiary."

Checked Sep 16, 2026. Guardian nomination rules cited are California Probate Code 1500 and 1502 (1502 as amended effective Jan 1, 2026), California Family Code 3040 and 3041, the Texas declaration of guardian form and New York courts guidance. Beneficiary rules are from FINRA, OPM and 26 U.S.C. 417. Estate law is state law and specifics vary. Nothing here is legal advice.