Naming guardians in your will¶

For most parents of young children the single biggest reason to make a will is to name a guardian — the person who will care for the children day-to-day if both parents die before the children reach 18. The legal mechanism is short and unglamorous: a clause in the will that names the guardian (and a substitute), signed and witnessed in the same way as the rest of the will. The hard part is the choice itself, and the conversation with the proposed guardian. The hardest part is having the conversation early enough that it never matters.

Without a named guardian, the family court chooses. Family members can apply, but the decision is the court's, and the gap between the death and the court's order is one in which the children may end up in temporary arrangements while the question is decided. A named guardian compresses that uncertainty into hours rather than weeks.

If you can only do one thing today: name the person you would want to raise your children if both parents died, and tell them. Even before the will exists, that conversation is the substantive choice — everything else is paperwork.

What happens if no guardian is named¶

If both parents (or the only parent with parental responsibility) die without naming a guardian and the children are under 18, the family court appoints one. The legal route differs slightly across the UK but the principle is identical: the court must decide, the child's welfare is the paramount consideration, and the result may not be what the parents would have chosen.

England and Wales — the Children Act 1989 (section 5) is the governing statute. A parent with parental responsibility may appoint a guardian by will or by a written instrument signed and dated by the parent. If no appointment has been made and there is no surviving parent with parental responsibility, the family court appoints a guardian. Family members can apply; the local authority may also become involved while the court process is in train. [source: legislation-gov-uk/children-act-1989-2026-05-02.html]

Scotland — the Children (Scotland) Act 1995 governs. A parent with parental responsibilities and rights may appoint a guardian by will or by another written document signed and dated by the parent. The Trusts and Succession (Scotland) Act 2024 modernised aspects of the surrounding law but did not change the core appointment mechanism. Without an appointment, the sheriff court appoints a guardian on application.

Northern Ireland — the Children (Northern Ireland) Order 1995 mirrors the English position. A parent with parental responsibility may appoint a guardian by will. Without an appointment, the court chooses, with the child's welfare as the paramount consideration.

In all three jurisdictions, the court's decision is unpredictable to the parents because it has to weigh circumstances they cannot foresee — which family members are alive and willing, what the children want (their views are heard once they are old enough), and what stability the available carers can offer. Naming a guardian removes the court's discretion. That is its single most important effect.

When the guardian appointment takes effect¶

The clause in the will activates when there is no surviving parent with parental responsibility. The mechanics differ by family circumstance:

Married couples or civil partners with both parents holding parental responsibility: the clause activates only if both parents die. While one parent survives, the surviving parent continues to hold parental responsibility and the appointment in the deceased parent's will is dormant. (Both parents should still name the same guardian in their respective wills, in case both die together or in succession.)
Separated or divorced parents: the surviving biological parent normally retains parental responsibility (it is not removed by separation or divorce). A guardian appointment by one parent does not displace the surviving parent. The appointment activates only if the children later have no surviving parent with parental responsibility.
Single parents (where the other parent has died, never had parental responsibility, or has had parental responsibility removed): the appointment in the parent's will activates immediately on the parent's death.
Step-parents: a step-parent does not automatically have parental responsibility for a step-child; it can be acquired through a formal parental responsibility agreement with the other parent or through a court order, but it is separate from guardianship. If a parent wants the step-parent to act as guardian, they must be named in the will.

A guardian appointment cannot defeat a surviving parent's existing parental responsibility — the law does not let a deceased parent override the rights of a living one. What it can do is provide a clear named person for the situation in which both biological parents are gone.

Choosing the right person¶

The constraints are minimal: the guardian must be at least 18 and willing to act. Beyond that, the choice is judgement. The questions worth working through:

Age and health. Will the person be physically and mentally able to raise the children for a decade or more? A grandparent in their 60s named for a 4-year-old is often a poor choice in retrospect — the children may need active care into the grandparent's 70s. Younger guardians (a sibling, a close friend) carry the long-term burden better.

Values and parenting style. How does the guardian raise their own children, or how would they raise someone else's? Will they respect what matters to the parent — religious faith, education choices, approach to discipline, attitudes to risk?

Geographic location. Will the children move schools? Lose their friends? Move away from the rest of the extended family? Stability matters most when everything else has been disrupted.

Existing relationship. Do the children already know the proposed guardian? Like and trust them? A guardian who is functionally a stranger to the children compounds an already difficult situation. The best guardian is usually someone the children already see often, ask for, and feel safe with.

Financial stability. The guardian does not need to be wealthy — money for the children's upbringing typically comes from the estate (life insurance, pension death benefits, the residue of the estate held in trust). But the guardian needs to be financially organised enough to absorb the practical costs of raising additional children without crisis.

Honest confidence. If the parent has reservations about the proposed guardian, name someone else. A clear second-best is better than a doubt-filled first choice.

The single most important step: ask the person before naming them. Surprise nominations cause refusals at the worst possible moment.

Always name a substitute¶

A guardian appointment that names a single person fails entirely if that person predeceases the parent, becomes incapacitated, or refuses to act when the time comes. The will should always name at least one substitute, and ideally a second substitute. The clause is short; the safety it provides is large.

Both parents should name the same guardian and the same substitute in their respective wills. A mismatch — parent A names sister X, parent B names brother Y — has to be resolved by the court if both parents die, which is precisely what the appointment was supposed to avoid.

Separating the carer from the money¶

A useful feature of the will is that guardianship and money management can be split. The same person can be both, but they do not have to be.

The two roles:

Guardian — looks after the children day-to-day. Decides where they live, where they go to school, what activities they do. Responsible for the practical and emotional work of raising them.
Trustee — manages money held in trust for the children until they reach an age the parent specifies (often 18, sometimes 21 or 25). Pays for the children's living expenses, school fees, holidays, and other needs. Reports on the trust's accounts.

Splitting the roles is sensible when the best emotional choice (a warm sibling, close friend, or grandparent) is not the right financial choice (someone with no experience managing investments). A trust held by an accountant, a solicitor, or a corporate trustee provides oversight; the guardian asks the trustee to release money for specific needs.

The split is also useful where the parent has concerns about a partner of the proposed guardian, or about the guardian's ability to ring-fence the children's inheritance from the family's general finances. The trust structure makes those boundaries explicit.

A trust for minor or vulnerable beneficiaries is specialist drafting — well within a solicitor's day-to-day work but not within the scope of most DIY or online will services. See DIY will vs solicitor for when professional help becomes non-optional.

What to tell the proposed guardian¶

Once the guardian has agreed, write down — separately from the will — the practical context they would need if the worst happened:

Parenting values: education preferences, religious or secular framing, attitudes to extended family, approach to discipline.
The children's routines and needs: schools, friends, sports clubs, allergies, fears, comfort objects, the details that take a stranger months to learn.
Where to find documents: birth certificates, passports, school records, medical records, the will itself, the letter of wishes.
Financial arrangements: life insurance policies, pension death benefits, any trust set up for the children, contact details for the trustees.
Family contacts: grandparents, aunts and uncles, godparents, close friends — the people who should stay in the children's lives even though they are not the guardian.

This sits naturally in a letter of wishes kept with the will. The letter is non-binding but carries weight; it is also private and easy to update without re-signing the will.

When to update the choice¶

Review the guardian appointment after every major change:

A child added to the family — the will may need updating to cover the new child explicitly even if the existing guardian clause is broad.
A change in the proposed guardian's circumstances — divorce, illness, a move overseas, a falling-out — may make them no longer the right choice.
A change in the parents' relationship with the proposed guardian — close friends drift, family relationships strain.
The children growing up — guardianship ceases at 18; a will that has not been updated since the children were small may need rethinking as they approach adulthood (different concerns: financial maturity, university, the structure of the inheritance trust).
A change of jurisdiction — moving into or out of Scotland, particularly, because Scottish succession law differs in ways that may affect the structure of the trust.

Updates are made by writing a new will (which expressly revokes the old one) or, for a small change to an otherwise current will, by a codicil. A codicil for a guardianship change is acceptable but most solicitors recommend a fresh will for any change that touches the children's care, because the clarity of a single current document matters most when the will is needed.

Practical mechanics¶

The appointment clause itself is short. A typical form (in England and Wales — the wording differs in Scotland):

I appoint [name and address of guardian] to be the guardian of any of my children under the age of 18 at my death, in the event that they have no surviving parent with parental responsibility. If [first guardian] is unable or unwilling to act, I appoint [name and address of substitute] in their place.

The clause is signed and witnessed in the same way as the rest of the will — see Making a will for the formalities.

A separate written instrument can also appoint a guardian under section 5 of the Children Act 1989 — a signed and dated document outside the will. The will route is normally cleaner because it sits with the rest of the estate plan, the executor finds it as a matter of course, and the signing formalities are familiar to solicitors. The separate-instrument route is mainly useful where a parent wants to name a guardian without making (or before making) a full will.

What this guide doesn't cover¶

The drafting of the will itself — see Making a will and DIY will vs solicitor.
Setting up trusts for minor children's inheritance in detail — specialist drafting work; instruct a solicitor experienced in private client / trusts work.
Special guardianship orders — a separate mechanism under the Children Act 1989 by which a court grants enhanced parental responsibility to a non-parent during the child's lifetime; not a replacement for testamentary guardianship.
Adoption proceedings — a separate legal route by which the guardian can become the legal parent; outside the scope of a will.
Children-of-the-family claims under the Inheritance (Provision for Family and Dependants) Act 1975 by step-children or other dependants — covered in Intestacy rules and the contentious-probate area generally.

If you're struggling, you don't have to do this alone. Samaritans (116 123, 24/7) | Cruse Bereavement Care (0808 808 1677) | Mind (0300 123 3393)

Next: Recording funeral wishes

Last verified: 2 May 2026 against the Children Act 1989 and the Children (Scotland) Act 1995.