Naming a Guardian for Your Children in a Louisiana Will
Louisiana doesn’t use the word “guardian” for a minor child. It uses tutor. That isn’t just vocabulary — it changes which Civil Code articles control who raises your children if you don’t survive to do it yourself, and it means a Louisiana will has to make two appointments, not one. A will that makes only the first leaves the second to a judge.
Tutorship, Not Guardianship
Louisiana splits protective roles by who needs protecting. A curator is appointed for an adult who has been interdicted. A tutor is appointed for a minor child, and covers both the child’s person and the child’s property. There is no separate “guardian of the person” and “conservator of the estate” the way most states divide it — one tutor holds both roles by default.
That default can be split, but it takes deliberate drafting. The Code of Civil Procedure provides for a separate tutor of the child’s property (La. Code Civ. Proc. art. 4069), and in joint-custody situations the Civil Code specifically allows it (more on that below). If you want one person raising your child and a different person managing the money, the documents have to say so.
While you and your child’s other parent are both living, tutorship generally isn’t in play at all — you exercise parental authority over your child, and no court appointment is involved. Tutorship by nature under Civil Code Article 250 is what takes over when that changes: on the death of one parent, tutorship belongs of right to the survivor; on divorce or judicial separation, it belongs to the custodial parent, or to both parents as cotutors where joint custody has been awarded. A 2022 amendment (Acts 2022, No. 121, effective May 25, 2022) clarified that joint-custody cotutors each have equal authority to act alone on the child’s behalf.
The practical takeaway: a will doesn’t create tutorship while both parents are alive. It nominates who takes over when neither of you can.
Tutorship by Will: Article 257
The appointment your will actually makes is called tutorship by will, governed by Civil Code Article 257.
The right to make it belongs exclusively to the parent who dies last. Your will controls only if you are the surviving parent. The same right extends to a parent who has been named curator of an interdicted spouse — subject to that spouse reclaiming the tutorship if a court later restores their capacity.
The guardrail worth understanding: the first parent’s will has no effect on the tutor nomination if the other parent survives. Only the will of the parent who dies last controls under Article 257. This is why both parents’ estate plans should be drafted and reviewed together — two wills naming different people isn’t a conflict the court resolves, it’s simply the survivor’s will that counts.
Article 257 also allows the nomination outside a will entirely: a declaration executed before a notary and two witnesses does the same job. The will is usually the cleaner vehicle, because it keeps the nomination with the rest of your estate plan instead of in a separate document nobody remembers to look for.
If You’re Divorced or Share Custody
Civil Code Article 258 handles parents who are divorced or judicially separated at death, and it draws a distinction most people miss.
If one parent has sole care and custody, only that parent has the right to appoint a tutor.
If the parents share joint custody, the rule splits in two:
- The right to appoint a tutor of the child belongs to the parent who dies last, same as Article 257.
- But either parent may appoint a tutor of the child’s property — and if both do, each appointed tutor separately administers the portion of the child’s property that came from that parent’s estate. Property that came from neither estate gets assigned by the court.
That second rule is genuinely useful and rarely used. It means a joint-custody parent who has no say over who raises the child still has a say over who manages what the child inherits from them.
Either way, the nomination right tracks whoever holds tutorship by law at death. A will drafted before a custody change can name someone with no legal standing to receive the appointment, which is why this document needs a look at every marital or custody change.
The Undertutor: The Second Appointment
This is the piece DIY will templates and out-of-state forms miss almost every time.
Civil Code Article 273 says it in nine words: “In every tutorship there shall be an undertutor.”
Louisiana does not allow a tutorship with only one appointed adult. The undertutor’s job is to watch how the tutor handles the child’s property. Article 278 makes the undertutor personally liable for damages if they fail to record the minor’s legal mortgage against the tutor’s property — a real safeguard, built in because the tutor manages the child’s assets without a judge reviewing every routine transaction.
If your will names a tutor but no undertutor, the appointment doesn’t disappear — the court makes it for you under La. Code Civ. Proc. art. 4201. A judge, not you, picks the person who oversees your child’s money. That is the outcome the nomination was supposed to prevent.
Tutorship Roles at a Glance
| Role | Statutory Basis | Function | Who Selects |
|---|---|---|---|
| Tutor by nature | C.C. art. 250 | Arises automatically on a parent’s death, divorce, or separation | Operation of law |
| Tutor by will | C.C. art. 257 | Nominates a tutor to serve after the last parent’s death | Parent dying last, by testament or notarial declaration |
| Tutor of the property (joint custody) | C.C. art. 258; C.C.P. art. 4069 | Manages the child’s property, separate from the tutor of the person | Either joint-custody parent |
| Undertutor | C.C. art. 273; C.C.P. art. 4201 | Oversees the tutor’s administration of the child’s property | Parent by will, or the court if unnamed |
| Tutor by effect of law | C.C. arts. 263–269 | Qualified ascendants or relatives, absent a valid will nomination | Statutory order of priority |
| Dative tutor | C.C. arts. 270–272 | Court-appointed when no other tutorship applies | Judge |
Court Confirmation Is Still Required
A will nomination is your stated choice, not a self-executing appointment. Under Civil Code Article 248, tutorship by nature takes place of right, but every other kind of tutorship requires the tutor to be confirmed or appointed by the court and to qualify for the office.
The standard is favorable to you. La. Code Civ. Proc. art. 4062 directs that the court shall appoint the person nominated in a testament or authentic act, upon furnishing security and taking an oath, unless that person is disqualified or the court determines for some other reason that the appointment wouldn’t be in the child’s best interest. So the nomination carries real weight — the judge is directed to follow it. But someone still has to file the petition, and the nominated tutor still has to qualify before they can act.
Common Drafting Mistakes
Naming a tutor but no undertutor. Leaves the second, legally required appointment to the court under C.C.P. art. 4201 instead of to you.
Failing to name an alternate. If your first choice dies before you, declines, or is excused under Articles 292–301, an unamended will leaves no nomination at all.
Not updating after a divorce or custody change. Article 258 ties the nomination right to whoever holds tutorship by law at death. A stale will can name someone with no legal footing to receive the appointment.
Assuming your spouse’s will covers it. Only the will of the parent who dies last controls. If only one of you has a nomination in place, there’s a coin flip built into your plan.
Naming an out-of-state tutor without addressing property. Tutorship covers person and property by default. If you want a relative to raise your child but someone else to manage what the child inherits, the documents have to say so explicitly.
Questions Parents Ask
Does Louisiana use the word “guardian” in its statutes?
No. The Civil Code uses “tutor” for a minor’s person and property, and “curator” for an interdicted adult. “Guardian” is what most other states call the equivalent role.
Can I name a tutor in my will if my child’s other parent is still living?
You can and you should — but under Article 257 it takes effect only if you are the parent who dies last. If the other parent survives you, their will controls the nomination.
Is a will the only way to nominate a tutor?
No. Article 257 also allows a declaration executed before a notary and two witnesses. Keeping it in the will just consolidates your plan into one document.
What happens if I name a tutor but not an undertutor?
The court appoints one under La. Code Civ. Proc. art. 4201. A judge, not you, selects the person overseeing your child’s property.
Does the court have to follow my nomination?
Close to it. Under C.C.P. art. 4062 the court is directed to appoint the person you nominated unless they’re disqualified or the appointment wouldn’t serve the child’s best interest. Confirmation is still a required step — the nomination isn’t automatic at death.
We share joint custody. Do I have any say at all?
Yes. Under Article 258, even where the right to name a tutor of the child belongs to the parent dying last, either joint-custody parent may name a tutor of the child’s property.
Citation Reference
| Citation | Subject |
|---|---|
| La. Civ. Code art. 248 | Confirmation or appointment required for every tutorship other than by nature |
| La. Civ. Code art. 250 | Tutorship by nature; cotutorship for joint-custody parents (am. Acts 2022, No. 121) |
| La. Civ. Code art. 257 | Right of the parent dying last to appoint by testament or notarial declaration |
| La. Civ. Code art. 258 | Appointment where parents are divorced or separated; separate tutor of property |
| La. Civ. Code art. 262 | Appointment of several tutors; order of priority |
| La. Civ. Code arts. 263–269 | Tutorship by the effect of the law |
| La. Civ. Code arts. 270–272 | Dative tutorship (court appointment of the tutor) |
| La. Civ. Code art. 273 | Necessity of an undertutor in every tutorship |
| La. Civ. Code art. 278 | Undertutor’s liability regarding the minor’s legal mortgage |
| La. Civ. Code arts. 292–301 | Causes that dispense or excuse a nominated tutor |
| La. Code Civ. Proc. art. 4062 | Confirmation of a tutor named by will |
| La. Code Civ. Proc. art. 4069 | Separate tutor of the minor’s property |
| La. Code Civ. Proc. arts. 4171–4172 | Oath and letters of tutorship |
| La. Code Civ. Proc. arts. 4201–4206 | Appointment and duties of the undertutor |
Sources: Louisiana Civil Code, Title VIII; Louisiana Code of Civil Procedure, Book VII.
A Note From Bloom Legal
This article is provided for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship with Bloom Legal or any affiliated attorney. Tutorship nominations are fact-specific and depend on custody status, family circumstances, and the nature of your child’s property.
If you need to name or update a tutor and undertutor for your children, request a consultation to discuss your situation directly with an attorney.
