Short Answer

In North Carolina, each parent can name (nominate) a guardian for a minor child in their will. The Clerk of Superior Court gives substantial weight to your nomination, but the court must appoint the guardian who best serves the child’s interests and must honor the rights of any surviving parent. If both parents die, your nominee applies to the clerk to be officially appointed and, if needed, qualifies as guardian of the person, the estate, or both.

Understanding the Problem

You want to know how, under North Carolina law, you can name someone in your will to care for your minor child if you both pass away. Here, you and your spouse plan wills and want your oldest adult child to step in as guardian if the worst happens. You need to understand who appoints a guardian, when that happens, and what your wills should say so your wishes carry weight.

Apply the Law

North Carolina lets parents nominate a guardian for a minor in their wills. A court (the Clerk of Superior Court) makes the actual appointment after both parents have died or there is no “natural guardian.” The clerk uses a best‑interest standard and must consider your testamentary nomination with substantial weight. A guardian can be (1) guardian of the person (care/custody), (2) guardian of the estate (property/money), or (3) a general guardian (both). For smaller inheritances, you can direct gifts to a Uniform Transfers to Minors Act (UTMA) custodian in your will to avoid a formal estate guardianship. A nominee qualifies by oath and, for an estate or general guardianship, typically posting a bond (your will can request a bond waiver, but the clerk may still require one). The appointment process begins only after the triggering event (e.g., both parents’ deaths) and includes filing an application, serving required parties, and a hearing.

Key Requirements

• Clear nomination in each will: Name your preferred guardian (and a backup) for your minor child and state the type of guardianship (person, estate, or both).
• Best-interest appointment: The clerk considers your nomination with substantial weight but appoints who is best for the child; a surviving parent’s rights are not displaced by a will.
• Trigger to act: Your nominee seeks appointment only after both parents have died or there is no natural guardian.
• Types of appointment: Guardian of the person handles care; guardian of the estate manages money; a general guardian does both.
• Qualification and bond: The nominee must be an adult, take an oath, and post bond for estate/general guardianship unless waived in the will and the clerk agrees.
• Property planning option: Use UTMA in your will to name a custodian for a minor’s inheritance; if a fiduciary makes the transfer and it exceeds $10,000, clerk approval is required.

What the Statutes Say

• N.C. Gen. Stat. § 35A-1225 (Testamentary nomination of guardian) – Parents may nominate a guardian in a will; the court gives the nomination substantial weight and may waive bond as directed unless the clerk finds bond is needed.
• N.C. Gen. Stat. § 35A-1221 (Application for appointment) – Sets who may apply to be guardian for a minor and what the application must include.
• N.C. Gen. Stat. § 35A-1224 (Appointment; best interest; no natural guardian) – Clerk appoints when there is no natural guardian and must act in the child’s best interest, giving substantial weight to a parent’s will.
• N.C. Gen. Stat. § 33A-3 (UTMA nomination by will) – A will can nominate a custodian to receive and manage property for a minor under UTMA.

Analysis

Apply the Rule to the Facts: Because you want your oldest adult child to serve if you both pass, include a clear nomination in each will for that child to be guardian of the person (and an alternate). Given your modest assets (bank account and cars), also direct any gift for your minor to a UTMA custodian or a simple testamentary trust. If both parents die, your nominee applies to the Clerk of Superior Court; the clerk gives your wills substantial weight and appoints in the child’s best interest.

Process & Timing

1. Who files: Your nominated guardian. Where: Clerk of Superior Court (Estates Division) in the child’s North Carolina county. What: Application for Appointment of Guardian for Minor (AOC‑E‑208), plus death certificates and copies of the wills showing the nomination. When: After both parents’ deaths; file promptly so the guardian can consent to school and medical decisions.
2. The clerk issues notice and sets a hearing. Service must follow Rule 4 on required parties; the clerk may direct notice to others. Hearings are usually scheduled in weeks, but timing varies by county.
3. If appointed, the guardian takes an oath (AOC‑E‑400), posts bond if required (AOC‑E‑401), and receives Letters of Appointment (AOC‑E‑407/408). If only small property passes to the minor, the will’s UTMA direction can avoid a separate estate guardianship.

Exceptions & Pitfalls

• If one parent survives, that parent is the natural guardian; a will cannot displace their rights.
• If parents’ wills name different guardians, the will with the later date generally controls unless other best‑interest factors prevail.
• Bond: Even if your will waives bond, the clerk can require one for a guardian of the estate or a general guardian.
• Nonresident nominees can serve but must appoint a North Carolina process agent and will likely need bond.
• UTMA planning: A fiduciary transfer over $10,000 to a UTMA custodian needs clerk approval; draft your will to direct UTMA or a simple trust if a minor could inherit.
• Service defects delay appointments; make sure all required parties are served under Rule 4 before the hearing.

Talk to a Estate Planning Attorney

If you’re dealing with naming a guardian for a minor child in your wills and setting up simple provisions for a potential inheritance, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.