Naming Guardians for Children in Your Will

If a child has no surviving parent with parental responsibility and no guardian has been named, the court becomes responsible for deciding who raises the children. The process differs slightly across the UK, but the principle is the same: the court must make the decision, and the court's paramount concern is the child's welfare.

England and Wales

Under the Children Act 1989, if no guardian has been named and no surviving parent has parental responsibility, the Family Court appoints a guardian. A testamentary guardian appointment can take effect on the death of a parent if the child has no other parent with parental responsibility, or later when the child no longer has such a parent. Family members can apply to become guardians, but the court has full discretion. The judge will consider what is in the best interests of the child, but the outcome is not guaranteed to match what you would have wanted.

Until a guardian is appointed, the local authority may become involved in the child's care, and the children could be placed in temporary arrangements while the court decides. The exact outcome depends on the circumstances, but the process takes time and creates disruption.

Scotland

In Scotland, the law is governed by the Children (Scotland) Act 1995. A parent with parental responsibilities and rights can appoint a guardian by will or by another written document (signed and dated by the parent). The appointment takes effect only if no surviving parent has parental responsibilities.

If no guardian has been appointed, the court can appoint one under the Children (Scotland) Act 1995. The Trusts and Succession (Scotland) Act 2024 modernised various aspects of succession law, but the fundamental position on guardianship appointment remains: parents should appoint in writing to ensure their wishes are known.

Northern Ireland

The Children (Northern Ireland) Order 1995 mirrors the law in England and Wales in its fundamentals. A parent who has parental responsibility can appoint a guardian by will. If the child has no surviving parent with parental responsibility and no guardian has been named, the court appoints one, considering the child's welfare as the paramount concern.

The most reliable way to appoint a guardian is through your will. A will is a formal legal document that is properly witnessed, stored safely, and will be found by your executors when needed.

You can also appoint a guardian through a separate written document, signed and dated by you, but a will is simpler because solicitors handle it and it is found more easily when the time comes.

Both parents should name the same guardian in their respective wills. If you are married or in a civil partnership, you both need your own will naming the same person. This prevents confusion and conflict if one parent dies. If parents name different people, the dispute must be resolved by the court.

If You Are Separated or Divorced

If you and the other parent are separated or divorced, the situation is slightly different. The surviving parent usually retains parental responsibility and continues to look after the children, so the guardianship appointment in the deceased parent's will does not come into effect while the other parent is alive and has parental responsibility.

However, you should still name a guardian in your will in case the children are left with no surviving parent who has parental responsibility. Discuss this with the other parent if you can, to ensure you are both naming the same person.

A guardian must be at least 18 years old. There is no legal requirement to name a family member. You can name a friend, or in rare cases a professional, though most parents choose someone they know.

You can name more than one person to be guardians together. For example, a couple might act as joint guardians. You can also name a substitute or backup guardian in case your first choice cannot or will not act. This is practical and sensible.

Choosing a guardian is one of the most important decisions you can make. Think through these practical considerations carefully.

Age and health. Will this person be able to look after children long-term? If you name a grandparent as guardian, consider whether they will still be able to provide active care if your children are young. A guardian who becomes unwell or frail partway through cannot do their job. Consider naming someone in good health who is younger.

Values and parenting style. Do their values match yours? How do they raise their own children, or how would they raise someone else's? Will they respect what matters to you: your religious faith, your views on education, your approach to discipline and kindness?

Location. Will your children need to move schools and away from their friends? Will they leave the area where they have family and community ties? Proximity matters, especially for young children.

Relationship with the children. Do your children know this person? Do they like and trust them? A guardian who is a stranger to your children makes an already difficult situation worse. The best guardian is someone your children already have a relationship with, someone they feel safe with.

Financial situation. Can this person afford to raise your children? You can help by setting aside money in a trust (separate from guardianship), but do not name someone as guardian if their financial situation is precarious. Guardianship is about care and upbringing, not about getting access to your children's inheritance.

Your confidence. Ultimately, choose someone you genuinely trust with your child's life. If you are not confident, do not name them, even if they are family.

One of the most useful features of a will is that you can separate guardianship from financial management.

You might name one person as the guardian (the person who will look after your children day-to-day) and a different person as the trustee (the person who manages the money and your children's inheritance).

This is practical when the best carer is not the best money manager, or when you want an extra layer of oversight. For example, you might name your sister as guardian because she is warm, patient, and your children love her, and name your accountant friend or a bank as trustee to manage the inheritance carefully.

The trustee holds money in trust until the children reach an age you specify (often 18, sometimes 25 or older). The trustee pays for the children's day-to-day expenses, education, and other needs, and the guardian makes decisions about how they are raised.

Once you have decided, write down and share with your guardian:

• Your wishes for how the children should be raised (education, religion, values, discipline approach)
• Where to find important documents (birth certificates, school records, medical information, the will itself)
• Financial arrangements you have made (savings, life insurance, trusts)
• Information about the children: their routines, allergies, fears, comfort items, what helps them feel secure
• Contact information for the children's schools, doctors, dentist
• Names and contact details of family members and close friends who should stay in the children's lives

You can record this formally in a letter of wishes, or less formally in a document you update as things change. A letter of wishes is not legally binding, but it carries weight because it shows your thinking and your values. It is not filed with your will, so it remains private.

Your choice of guardian should not be set in stone. Review it when circumstances change.

• If your chosen guardian becomes ill or unwell, consider naming someone else
• If you divorce or separate, review whether your choice still makes sense
• If your relationship with the guardian changes, you can name someone else
• If the children grow older, they will eventually reach 18 and no longer need a guardian

When you want to change your guardian, you make a new will. A new will revokes the old one completely, including the old guardianship appointment. You do not need to do anything with the old will; just destroy it to avoid confusion.

A step-parent does not automatically have parental responsibility or guardianship rights over a step-child. If you want your step-parent partner to be guardian, you must name them in your will.

A step-parent can acquire parental responsibility through a court order or parental responsibility agreement with the child's other parent, but this is separate from guardianship. The fact that someone has parental responsibility does not automatically make them a guardian.

If you are in a new relationship and want your partner to be guardian, name them in your will and discuss it openly with them. If the other biological parent is alive, consider discussing it with them too, though you are not legally required to.

Beyond naming a guardian in your will, consider these steps:

Register your wishes with the local authority or relevant agencies. If your children are in school, the school should know who would look after them if something happened to you. This is not a legal requirement but a practical step.

Keep your will somewhere safe and tell your family where it is. A will locked in a box that no one can find is useless. Tell your executors, or a trusted family member, where to find your will.

Make a letter of wishes. This is a personal document that explains your parenting values, your hopes for your children, and practical information about their lives. It is not legally binding, but it helps your guardian understand you and your children better. You can update it without changing your will.

Set up a trust for your children's money. Guardianship is about care; a trust is about money. You can set up a simple trust in your will to ensure your children's inheritance is managed carefully until they reach an age you specify.