Short Answer

In North Carolina, you nominate a guardian for your minor child in your will. The Clerk of Superior Court gives substantial weight to your nomination but appoints a guardian only if there is no natural parent available and able to serve. Use your will to nominate the guardian of the person, and use a revocable trust (or beneficiary designations to a trust) to manage assets for minors so you avoid a court-ordered guardianship of the estate and probate.

Understanding the Problem

You want to know how, under North Carolina law, you can name who will care for your minor child if you die or are not available. Specifically: how can parents include a guardian nomination in their estate plan so the right person can step in? You have three children, one of whom is a minor. This article explains how to make those nominations and coordinate them with a revocable trust to avoid probate.

Apply the Law

Under North Carolina law, parents nominate a guardian for a minor in a will. A “guardian of the person” makes day-to-day care decisions. A “guardian of the estate” manages a minor’s money if it passes to the child outright. The Clerk of Superior Court decides appointments when needed, gives substantial weight to a parent’s testamentary nomination, and issues letters after qualification. If one natural parent survives and has not willfully abandoned the child, that parent remains the child’s natural guardian of the person. Using a revocable trust to hold inheritances for minors typically avoids the need for a guardian of the estate.

Key Requirements

• Nominate in a will: Each parent names a preferred guardian for the minor in a properly executed will; this guides the Clerk’s appointment.
• Natural parent priority: If a natural parent survives and has not willfully abandoned the child, the court does not appoint a separate guardian of the person.
• Best interest standard: The Clerk considers your nomination and appoints the person who best serves the child’s interests.
• Guardianship of estate only if needed: A court guardian of the estate is generally required only when assets pass outright to the minor; a trust can avoid this.
• Bond and qualifications: Your will can request no bond for your nominee, though the Clerk may still require it; nonresidents may serve if statutory conditions are met.
• Forum and proof: Appointments are made by the Clerk of Superior Court after an application, notice, and a brief hearing.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1225 (Parental testamentary recommendation) – Parents may recommend a guardian in a will; the will can request no bond; later-dated wills control between differing recommendations.
• North Carolina Gen. Stat. § 35A-1224 (Appointment for minors) – Clerk appoints guardians for minors; gives substantial weight to a parent’s will but preserves a surviving parent’s rights.
• North Carolina Gen. Stat. § 35A-1221 (Application contents) – Lists what must be included in an application to appoint a guardian for a minor.
• North Carolina Gen. Stat. § 35A-1213 (Who may serve; nonresidents; corporations) – Sets eligibility, including requirements for nonresident guardians.

Analysis

Apply the Rule to the Facts: With one minor child, each parent should sign a will that nominates the same guardian of the person. Because a surviving natural parent remains the child’s natural guardian, your nomination primarily matters if neither parent is available. To avoid a court guardianship of the estate, place inheritances for all children in a revocable trust with successor trustees and age-based distributions. This also helps address the estranged adult child with tailored terms while keeping probate avoidance goals.

Process & Timing

1. Who files: The nominated person or another suitable adult. Where: Clerk of Superior Court in the minor’s county. What: Application for Appointment of Guardian for Minor (AOC‑E‑208); Order on Application (AOC‑E‑406); Oath (AOC‑E‑400); Letters of Guardianship (AOC‑E‑407/E‑408). When: After both parents are unavailable or when there is otherwise no natural guardian.
2. The Clerk issues notice to required parties, holds an informal hearing, and considers the parents’ will-based nomination and best-interest factors; timing varies by county but is usually prompt.
3. If appointed, the guardian qualifies; if serving as guardian of the estate or general guardian, bond may be required unless properly waived and the Clerk agrees. The Letters authorize the guardian to act.

Exceptions & Pitfalls

• A surviving natural parent who has not willfully abandoned the child is the natural guardian of the person; a will nomination does not override that.
• A trust or UTMA custodianship can avoid a guardian of the estate; if assets pass directly to a minor by beneficiary form, a court guardianship of the estate may be required.
• Your will can request no bond, but the Clerk may still require one if needed for the child’s protection.
• Nonresident guardians must meet North Carolina requirements (including appointing a resident process agent and, for estate/general guardians, posting bond).
• Service/notice rules apply to the guardianship application; missing required notice can delay appointment.

Talk to a Estate Planning Attorney

If you’re dealing with choosing a guardian for your minor child and aligning it with a revocable trust, 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.