Wills and Children: Guardianship

Why guardianship matters

If you have children under 18, one of the most important things your will does is name their legal guardians — the people who would raise them if both parents die.

Without this, the courts decide who looks after your children. They'll aim to act in the children's best interests, but they won't know your wishes. The person chosen might not be the person you would have picked.

It's an uncomfortable topic, but it's one of the strongest reasons to make a will — even if you have few assets.

How guardianship works in your will

You can name one or more guardians in your will. The appointment takes effect only if:

• You die and there is no surviving parent with parental responsibility, or
• You die and you were the sole person with a residence order / child arrangements order in your favour

In most cases, if one parent dies, the surviving parent continues to care for the children — regardless of what the will says. Guardians only step in when there's no surviving parent with parental responsibility.

Choosing a guardian

What to consider

• Values and parenting style — will your children be raised the way you'd want?
• Age and health — can they realistically take on young children for many years?
• Location — would your children need to move schools and leave their friends?
• Existing family commitments — do they already have children of their own?
• Financial situation — can they support additional children? (Your estate can help with this)
• Willingness — have you asked them?

Common choices

• Siblings or close family members
• Close friends who share your values
• Godparents (there's no automatic legal link between godparent and guardian, so you must name them in your will)

Practical steps

Talk to your chosen guardians

Never name someone in your will without discussing it first. They need to understand the commitment and agree to it. This conversation also lets you discuss:

• How you'd want your children raised
• Educational preferences
• Religious or cultural considerations
• How the financial side would work

Name alternates

Your primary guardian might not be able to act when the time comes — they may be too old, too ill, or their circumstances may have changed. Naming a backup guardian prevents the decision from falling to the courts.

Consider financial provision

Your will can include provisions to support your children's guardians financially. This might include:

• Leaving money in trust for the children's education and upkeep
• Leaving a gift to the guardians to cover the additional cost of raising your children
• Setting up a trust that the guardians can access for the children's benefit

Write a letter of wishes

A letter of wishes is an ideal place to record your thoughts on how you'd like your children raised. While not legally binding, it provides invaluable guidance to your guardians on:

• Schools and education
• Religious upbringing
• Family traditions
• Activities and interests
• Contact with other family members

What happens without a guardian named?

If both parents die and no guardian has been appointed in either parent's will, the local authority may become involved. Anyone who wants to care for the children would need to apply to the court for a child arrangements order.

This can lead to:

• Delays while the court decides
• Disputes between family members
• Uncertainty and distress for the children
• The possibility that the court chooses someone you wouldn't have wanted

Can the other parent override your choice?

If the surviving parent has parental responsibility, they continue to look after the children — your guardian appointment doesn't override a living parent's rights.

However, if both parents have wills naming different guardians, and both parents die, the court would need to decide. This situation is rare, but it's worth discussing with the other parent to agree on guardians if possible.

One of the best reasons to make a will

For parents, appointing guardians is reason enough to write a will — even if you own nothing. Your children's welfare is too important to leave to chance.