GUIDE · NEW BABY OR YOUNG CHILDREN
How to name a guardian for your children in your will
In England and Wales, a parent with parental responsibility can choose who would bring up their children if they died while the children are under 18. You do it in writing, and a will is the usual place. Your choice normally only takes effect once neither parent with parental responsibility is still alive. If nobody has been named, a court decides.
What a guardian does
A guardian steps into a parent's shoes. They get parental responsibility for your child: the legal right to make the day-to-day and big decisions, such as where your child lives, which school they go to and agreeing to medical treatment (Children Act 1989, section 5(6)).
A guardian isn't automatically in charge of your child's money. Money you leave to a child under 18 is held for them by trustees (the people your will puts in charge of it). The guardian and the trustees can be the same people, but they don't have to be, and some families prefer to keep the two roles apart.
A guardianship lasts until your child turns 18.
Who can name a guardian
- Any parent who has parental responsibility (section 5(3)). A child's mother always has it.
- A father has it if he was married to the mother when the child was born, if he's named on the birth certificate (for births registered from 1 December 2003), or through a parental responsibility agreement or court order.
- A guardian can also name someone to take over from them if they die.
- If you're not sure whether you have parental responsibility, tell us when you start your will and we'll check with you.
How to make it count
An appointment only works if it's in writing, dated and signed by you (section 5(5)). A will meets that test, and it keeps your choice together with the money and the trustees who will look after it. A properly made will also has two witnesses, which a separate note doesn't.
If you name a guardian in your will, that choice stands or falls with the will. Getting married cancels a will you made before (see does getting married cancel your will?), and with it your choice of guardian.
When a guardian takes over
This is the part most people don't expect. Your choice normally only takes effect when no parent with parental responsibility is left (section 5(7) and (8)).
- Two parents, both with parental responsibility. If one dies, the other carries on as the parent. The guardian named in the first parent's will steps in only after the second parent has died too.
- Separated parents. Priya and her ex both have parental responsibility. Priya names her sister as guardian. If Priya dies, her ex is still the children's parent with parental responsibility, so her sister doesn't become guardian then. You can't remove a surviving parent's parental responsibility through your will.
- The one exception. If a court order said your child was to live with you, and it was still in force when you died, the guardian you named takes on parental responsibility straight away, alongside the surviving parent.
If you're worried about who would bring up your children, write down your reasons in a letter of wishes kept with your will. It isn't binding, but a court deciding a dispute can take it into account.
What happens if you don't name anyone
If your children are left with no parent who has parental responsibility and you haven't named a guardian, nobody automatically has the right to look after them. A relative or friend would have to apply to the family court, and the court decides who becomes guardian (section 5(1)). Until that's settled, the local authority may need to step in.
Naming a guardian doesn't stop a court getting involved if there's a dispute later (section 6(7)), but it tells everyone, including the court, what you wanted.
Choosing your guardian
- Ask them first. They don't have to sign anything, but they can turn the role down once it takes effect (section 6(5)).
- Name a back-up in case your first choice can't or won't act.
- Naming a couple? Say what should happen if they separate, or if only one of them can act.
- Think practically: their age and health, where they live, their own family, and how they would bring up your children.
- Couples: you can each name different people, but if both choices take effect they would share the role, which can lead to disagreement. Most couples name the same people in mirror wills.
- Divorce: if you named your husband, wife or civil partner as guardian and you later divorce, that appointment is cancelled unless your will says otherwise (section 6(3A) and (3B)).
How FirstWills helps
We talk it through with you on a video consultation, and send your draft within 48 hours. Every will is written and checked by Tim Wilson MIPW, a Full Member of the Institute of Professional Willwriters, in plain English. We'll help you name guardians and back-ups, choose trustees for your children's money, and write a letter of wishes.
A single will is £199. Mirror wills for couples are £299. There's no VAT to add, and you pay only once your finished will is ready. See pricing · About Tim
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Frequently asked questions
Can I name a guardian without making a will?
Yes. Any written document that is dated and signed by you works. But a will keeps your choice with the money you leave your children and the trustees who manage it.
Can my ex stop the guardian I've chosen?
If your ex has parental responsibility, they remain your child's parent when you die, and your guardian normally only takes over once they have died too. You can't change that in a will.
Does the guardian look after my children's inheritance?
Not automatically. Money left to a child under 18 is held by trustees. You can name the same people as guardians and trustees, or different people.
Until what age does a guardian look after my children?
Until each child turns 18.
Can a guardian refuse?
Yes. They can turn it down in writing within a reasonable time of finding out the appointment has taken effect. That's why it's worth asking them first and naming a back-up.
Can I name a couple as guardians?
Yes. Say in your will what should happen if they separate or only one of them can act.
What if I don't name a guardian?
If no parent with parental responsibility is left, someone would have to apply to the family court to become guardian, and the court decides.