A good friend of mine called me in a panic the other day. She and her husband were leaving town for vacation and were worried about not having their estate plan in order. She asked how to name guardians for their four minor children, should her and her husband die.
This is a question estate planners hear all the time. The answer is that you just need to make a few decisions to get your will and other estate planning documents in order. She told me they did not have time to sign a will as they were leaving in the morning. She asked if her children would become wards of the state if they died without a will. A ward is someone who is placed under the protection of a legal guardian. When someone becomes a ward of the state, they are under the protection of some arm of the government.
Each state can be different, but in Missouri if both parents die with a child under the age of 18, then the probate court must appoint a guardian to make legal decisions for the minor. If the minor is over age 14, then the court will first consider the recommendation of the minor. Next, the court looks to the person named in the will of the last surviving parent. If there is no will naming a guardian, then the court will appoint "the most suitable person who is willing to serve and whose appointment serves the best interests of the child to a stable and permanent placement."
Naming a guardian in a will is still just a recommendation to the probate court. The person named in the will must be willing to serve, file a petition for guardianship and be found by the court to be fit to handle the duties of a guardian.
So, the answer to my friend's question was no — her children would likely not become wards of the state if she died without a will. However, it is unlikely her preference for guardian would be considered by the court if she never stated it in a validly executed will.