Choosing guardians for your children in your Will

For many parents, the main reason to make a Will is not money at all. It is the question of who would look after the children. It is not an easy thing to think about. But naming a guardian is one of the most caring things you can do, and it can save your family difficult decisions at a very hard time.

What is a guardian?

A guardian is a person you choose to take on parental responsibility for your child if you die while they are under 18. Parental responsibility means the legal rights and duties of a parent, such as deciding where a child lives, how they are educated and what medical care they receive.

A guardian is different from a trustee. A guardian looks after the child. A trustee looks after any money or property left for the child. You can choose the same person for both, or different people.

How the law allows you to appoint one

Under section 5 of the Children Act 1989, a parent with parental responsibility can appoint a guardian in writing. The document must be dated and signed. A Will is the most common way to do this, because it is signed and witnessed formally and sits alongside your other wishes.

When the appointment takes effect

This is the part that often surprises people. A guardian you name does not always step in straight away. In general:

• if the child has no surviving parent with parental responsibility, the appointment usually takes effect when you die
• if the other parent is alive and has parental responsibility, the child would normally stay with them, and your guardian may only step in later
• a court order about where the child lives can change this

Separated parents, blended families and step-parents can find these rules complex. A professional can explain how they apply to you.

Who should you choose?

There is no perfect answer. Many parents find it helps to think about these questions:

1. Who shares your values? Think about how you want your children raised.
2. Who knows your children well? A familiar person can make a painful change a little easier.
3. Where do they live? Would your children need to move school or leave friends?
4. What is their age and health? Could they care for a child for many years?
5. What else is going on in their life? Do they have their own children, work pressures or space at home?

Try not to choose based on money alone. Your Will can leave money to support whoever brings up your children.

Couples as guardians

Some parents name a couple, such as a sister and her husband. Think about what would happen if that couple later separated. You can name just one of them, or say what you would like to happen if they split up.

Back-up guardians

It is sensible to name a reserve, in case your first choice cannot take on the role when the time comes.

Talk to them first

A guardian does not have to accept the role. Speak to the people you have in mind before naming them. Explain your wishes and give them time to think. A frank conversation now can avoid a shock later.

Providing for your children financially

Children under 18 cannot inherit money or property outright. If you leave them something, it is usually held in trust until they reach an age you choose, often 18 or 25. Your Will can:

• name trustees to manage the money
• let trustees use money for education, health and day-to-day needs
• allow money to help the guardian, for example towards a larger home

Life insurance can also help make sure enough money is there. Check whether any policy is written in trust and who it pays out to.

A letter of wishes

Many parents write a separate letter for the guardian. It is usually not legally binding, but it can share things that matter, such as religion, schooling, contact with grandparents, or simple family traditions. You can update it whenever you like without changing your Will.

What if you do not name a guardian?

If both parents die without appointing a guardian, family members may need to apply to the court. In some cases the local authority may become involved. Naming a guardian does not remove every risk of dispute, but it gives the court and your family a clear statement of what you wanted.

Keep it up to date

Review your choice when your circumstances change. A new baby, a separation, a guardian moving away or falling ill are all reasons to look again.

Where to go from here

Our help article on what a Will can do covers the basics. If you are leaving money to children, it may help to read how trusts work. You can also read about when to review your Will as your family grows.

When you feel ready, you can explore making a Will with guardian appointments. WillHarbour is an introduction service, not a law firm. We can pass your enquiry, with your permission, to up to three suitable firms, such as solicitors or will-writing companies. It is free to use and there is no obligation.