Can You Name Overseas Guardians For Your Minor Kids? (Updated)

In today’s post, I’m discussing, the emotionally charged topic of overseas guardianship for immigrants.

Kids and Overseas Guardianship

Who to name as a guardian for your kids is one of the more stressful areas of creating a will for any parent.

It becomes a big issue for foreign-born families in the US who would like to have overseas guardians,  for their little ones.

The post 6 reasons why you need an estate plan even if you are a millionaire, details all the reasons you need to complete an estate plan.

If you pass away, become incapacitated, or get deported from the US (leaving your kids behind) somebody needs to take care of them. 

This is not part of the American dream that brought so many of us to this country, but it’s the reality of our lives and something we all need to plan for as foreign nationals.

Hence, is overseas guardianship a possibility?

What’s the Hesitation With Naming a Guardian?

This piece of estate planning research shows that about 64% of Americans with kids under the age of 18 don’t have a will or any written plan for the last stage of their lives.

This applies to US citizens and foreign nationals alike.

The following are some of the reasons, given for holding back.

    • They simply don’t want to think about death. I get it!

    • If on a work visa, they are waiting to figure out if they can stay in the country permanently before making the decision.

      • This is a risk, since depending on their visa priority date, the type of visa they are on, and their country of origin, it can take years to become a permanent resident.

  • They don’t have family in the country and would prefer overseas guardianship.

  • If they are a couple, from different countries, they can’t quite agree on the right candidate and what country that person should be from.

The Executor As The Guardian

Another major concern is thinking that the executor and the person in charge of the money needs to be the same. 

People have a hard time identifying this special person especially if they don’t have family in the country.

The assumption is wrong.!

The two roles can be separated and often, work best when handled by different people. 

The financial aspect can be handled via a testamentary trust set up for the kids, as a starting point.

This will have a named trustee (can be an individual or a corporate trustee) managing the money for the child.

Having trust allows the parent to control when and how the money is used or distributed.

It might also make it a little easier for the parents to find that one person that can take care of their kids without burdening them with the finances as well.

It’s stressful to think about naming the perfect guardian for your kids if you are not around, but the cost of doing nothing is worse.

The courts have a plan for your minor kids, which probably includes placing them into child protective custody, as they decide who is best placed to take care of them long term.

But you can avoid this nightmare scenario by naming a guardian in your will, including overseas guardians.

Deciding On A Guardian (Local Or Overseas)

The person being named to the role of bringing up the kids should be selected based on their beliefs, their values.

Also and more importantly whether they will bring up the kids the same way the parents would.

They must be willing to take on the role and be physically and emotionally able to handle the responsibility.

For a lot of folks, the easiest solution, and the people they feel they can trust the most for this are members of the family.

Ideally, the named family member lives nearby, and the kids have a personal relationship with them.

Attorneys suggest having one or two backup guardians in case the primary guardian is unable to handle the role or is not appointed by the courts.

Keep in mind that you name the guardian in your will, but the court appoints them.

They do this based on the child’s best interests and the laws of the country where you are a citizen or resident.

It means, there is always a slight possibility the courts may not agree with you. More on this later.

Foreign-born families and immigrants face some special challenges in this space.

Like a lot of financial issues they deal with, everything starts with their current legal status in the country.

This determines what country’s laws will apply in the appointment of the guardian. Also, the kids’ citizenship counts.

Immigrants on Work Visas and Overseas Guardianship

If you are a foreign national on a work visa, your status in the country is considered temporary. This means, your home country will have the upper hand in appointing a guardian.

Every country operates differently, from the way they handle the process to the length of time it takes to appoint the guardian.

So, in addition to naming your desired primary guardian, it’s crucial to also name a Standby, Temporary, or Emergency Guardian (which can be done via a Kids Protection Plan).

They’ll take care of your kids, as they await a more permanent arrangement.

Ideally, the backup guardian will live near you to minimize disruptions to your kids’ lives at a very vulnerable time.

Every state has different laws, so it’s important to work with an estate attorney familiar with your state as well as experience dealing with international/overseas guardianships to get this setup correctly.

Immigrants And Overseas Guardianship

If you are a US citizen or a permanent resident, then the courts will use your resident state’s laws to settle your affairs and appoint who they feel is the best person to be your kids’ guardian.

This may or may not be the person you have named in your will.

Personal Experience – Overseas Guardianship Considerations

This is where a lot of foreign-born families get into a tricky situation, especially those like me who grew up in a different culture.

I moved to this country in my early twenties, my values, and my experiences of how the world works may not necessarily be the same as the next person, but I do know these are values I want to pass on to my kids.

If something were to happen to me, I want my kids to be brought up with the same values that I grew up with.

The easiest way I can think of to accomplish this is to have them grow up in my birth country especially if very young.

The courts may disagree with me on this.

For immigrants without family in the US, the easiest solution to them is to go with overseas guardianship  (sibling, parent, etc.).

This may go against what the courts decide is the best solution for the kids.

Every state is different, but generally, if the named guardian is not a US citizen or a permanent resident, there are a couple of things the courts will consider before appointing them as a guardian.

Therefore, it is critical to work with an experienced attorney who understands immigration and overseas (international) guardianship as you select the person to, whom you want to give this responsibility.

Considerations For Overseas Guardianship

When the person named to be the guardian is not a US citizen or a permanent resident and lives in another country, the assumption is that the child will need to move to that country as well.

Typically, the courts will not allow a person to remain in the country or move here based on overseas guardianship alone.

The courts will want to dig into some of the following questions as part of appointing the guardian to ensure, that it’s the best situation for the child.

  • Is the proposed country safe (no political issues or civil war going on)? The courts will not send US kids to a country, where they may not be safe.

  • What is the legal status of the kids going to be in the new country, and will that create a hardship for them? If the kids are dual citizens, it makes it more likely that legally they can live in that country.

  • Do the kids have any ties with the proposed country? For example, do they speak the language? Have they visited that country before? If the kids speak the language, know their family overseas, and have spent time with them in that country, it is more likely the courts will appoint the selected overseas guardian.

  • Is the overseas guardian able to come to the US? Are they able to get a visa to travel and how soon are they able to make the trip?

Getting the Courts to Honor Your Wishes On Overseas Guardianship

Understand the courts make their decisions, based on the best interest of your kids, and based on the information they have available.

To increase the likelihood of getting the court to appoint the overseas guardian you have named, there are a couple more things you can do in addition to the above.

    • Spell out your wishes in your will, explaining why you want the named guardian to take care of your child in your home country, why you want them to grow up with those cultural values, your ties to the chosen country, and any other details that support that this is the best choice for your child.

    • Work with an attorney to ensure the right language and format.

    • To reinforce your wishes, just like you talk to your kids about money and other life issues, make guardianship a part of those conversations and let them know what you have planned for them if something were to happen to you.

      • You know your kids best, so use your discretion and do things at an age-appropriate level.

Personal Experience With Overseas Guardianship

This is something I’ve dealt with at a personal level. My spouse and I are US citizens but were born in different countries.

We revisit this issue regularly as the kids grow, when we have significant changes in our family lives like moving to a new state, or if there are changes in the named guardians’ lives.

Over the years we have managed to make this part of our dinner conversation with our kids.

So if something were to happen to both of us, the kids know who to call first, and where to go in the short term.

They also know who their named guardian is, and what country we would want them to move to permanently.

We hope that empowering them this way will make it more obvious why our choice at this point is the right one for our family.

Backup Guardian

Finally plan to have one or two backup guardians who are US citizens or permanent residents in case your primary guardian is not able to take the responsibility or is not appointed by the court.

The backup guardian can also be your temporary guardian and they would be able to take care of the kids as they await the court’s process.

Estate planning and specifically overseas guardianship is part and parcel of financial planning.

It’s also one of the most critical areas to work with an attorney well-versed in immigration and international estate law.

Don’t embark on this journey alone.

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Disclaimer:  This article is provided for general information and illustration purposes only. Nothing contained in the material constitutes tax advice, a recommendation for the purchase or sale of any security, investment advisory services, or legal advice. I encourage you to consult a financial planner, accountant, and/or legal counsel for advice specific to your situation. Reproduction of this material is prohibited without written permission from Jane Mepham and all rights are reserved. Read the full disclaimer here.

Jane Mepham, CFP® is a Fee-Only financial planner who loves simplifying the complexities of the U.S. financial system for immigrants and foreign nationals on work visas and those in tech. She’ll work with you to map out a personal strategy that addresses all areas of your financial life while avoiding key financial mistakes that could derail your American dream.