One of the more uncomfortable aspects of estate planning is deciding what will happen to your child if both you and the child’s other legal parent were to die unexpectedly. While the odds of this happening are low, the consequences of not naming a legal guardian in your will or a separate document can be significant, since a court would have to choose somebody to care for your child without your input.
In our globalized and mobile world, it is not uncommon to have close friends and family members who live in a different country. Some of these individuals may be a good choice as a guardian for your minor child, but it raises the question of whether a non-US citizen may legally qualify for guardianship. The short answer is that your child’s guardian does not necessarily have to be a US citizen or a permanent resident. However, it is ultimately up to the court to approve a guardian. It can be difficult to navigate the proceedings, which is why an estate planning professional attorney is often suggested to guardians.
When deciding whether to approve the individual you nominate for guardianship, the court looks at several factors, including the individual’s residency or citizenship status. A person who is not legally permitted to live in the United States may not be automatically dismissed by the court if they are otherwise a strong guardian candidate, but if that person is also named as your child’s trustee, there could be tax complications.
How Guardianship Works
As a parent, you are legally responsible for supporting your child until they reach the age of eighteen. This means ensuring that they receive medical care, education, food, housing, and clothing. If you were to unexpectedly die or become incapacitated, somebody needs to step in and fulfill your parental duties.
Normally, this would be your child’s other legal parent. But maybe the other parent is not able to step up because they are deceased or unable to care for themselves. There is also the possibility—no matter how remote—that you and your child’s other legal parent will both die or suffer a disability at the same time or within a short period of time. What happens to your child then? Who will provide the care that you are no longer able to provide?
The adult who steps into your shoes in this situation is known as your child’s guardian. Somebody like a grandparent, sibling, or close friend might be a good choice to fulfill this role. Ideally, it should be somebody you trust to raise your child the way you want them to be raised and who is willing and able to do the job.
Parents should name a guardian—or ideally, a list of several potential guardians in case your first choice does not work out—in their estate plan. Surprisingly, around 670 percent of Americans do not have a basic will, let alone a detailed estate plan. Without written instructions about who should care for your child in your place, the matter is left up to the state. The court could choose a guardian for your child. If nobody from your family is willing or available, your child might even end up in the foster care system. Here is why an estate planning professional is needed to assist you.
But it is important to note that, even if you have a will and name a guardian, it is still ultimately up to the court to decide if that person is qualified to serve in that role. In other words, the guardian named in your will is just a candidate. A family member could challenge your nomination in court and attempt to install an alternative, or the court may decide on its own that a guardian is unqualified.
Non-US Citizens Not Necessarily Disqualified from Guardianship
When evaluating a guardian candidate, the court assesses whether they meet guardianship qualifications under state law. These qualifications typically include a person’s age, criminal record, lifestyle, physical and mental capabilities, and financial situation, but they can vary by state.
For example, Illinois requires guardians to be at least eighteen years old, be of sound mind, not be legally disabled, not have a felony conviction involving harm or threat to a child, and be a resident of the United States. But being a US resident is not the same as being a US citizen. A resident could be somebody who obtained a green card (i.e., a Permanent Resident Card). According to Illinois Legal Aid, some state courts will also appoint undocumented immigrants as guardians.
The court will consider the best interests of the child when appointing a guardian. Nominating somebody who does not have a lawful US status, or who lives outside of the country, could raise the following questions with the court:
- Does the appointment of the guardian mean taking the child outside of the country to live?
- If so, is that country a safe and suitable location for the child?
- What will the legal status of the child be in the new country and how will that impact them?
- Does the child have ties with the proposed country? Do they speak the language? Have they visited before?
- Can the non-US citizen guardian travel to the United States and remain in this country for the guardianship legal process? Are there any legal issues that prevent them from obtaining a visa for this purpose?
- Could the guardian move permanently to the United States and gain lawful status to remain here and raise the child?
67% of Americans have no estate plan
Getting Guardianship of a Child, Ill. Legal Aid Online: Family & Safety (Sept. 18, 2021), https://www.illinoislegalaid.org/legal-information/getting-guardianship-child-0.
Context is everything in these cases. For example, if you were born and raised in the United States and most of the child’s family lives here—but you nominate a guardian that lives outside of the country—the court might decide that it would be in the best interest of the child to remain stateside. If, on the other hand, you were born and raised outside the United States and all of your family lives outside the United States, a guardian from your home country could make sense.
If you plan on choosing a non-US resident or noncitizen for your child’s guardian, you should provide detailed reasons for doing so in your will or separate nomination of guardian document. On the surface, your choice might not make sense to a court. But compelling arguments—like strong personal ties and a desire for your child to grow up with certain values—could help make your case.
Legal Guardian versus Guardian of the Estate
The person in charge of raising your child is known as a guardian of the person in some states. The person in charge of administering the finances you have set aside for your child is known as a guardian of the estate in some states.
Sometimes, the same person serves as both a legal guardian and a guardian of the estate. The role can also be divided. A legal guardian may be a great caregiver but bad with finances, in which case it would make sense to take a team approach to childcare, with someone else appointed to handle the child’s financial matters. The guardianship and alternative arrangements can be quite complicated so it’s recommended to speak to a professional attorney that specializes in guardianship.
Another situation in which you might be hesitant to unify the role of a legal guardian and the person managing the child’s financial matters is if the individual is not a US citizen and a trust has been set up for your child’s benefit. Having a foreign trustee could cause the trust to be classified as a foreign trust under US tax law. Being classified as a foreign trust triggers some problematic tax consequences, including potentially higher taxes, meaning less money for your child. Foreign trusts have additional reporting requirements as well.
Making an Informed Guardianship Decision
As a parent, appointing a guardian is among the most important decisions you’ll ever make. Before making that decision, you should talk with an estate planning attorney who can help you understand options and issues that may not have occurred to you.
If you decide to choose a non-US citizen as your child’s guardian, our lawyers can advise you about factors to consider and help you identify at least one US-based alternative in case your first choice does not work out. We recommend reviewing your guardianship and alternatives plan and wishes, and your estate plan in general, every few years, especially after a major family event.
To start planning for the future now, please contact our professional estate planning team of attorneys to schedule an appointment.