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If not you, then who? – Why you need to name a guardian for your children in a Will

When you have children, the last thing you want to think about is them having to live in a world without you in it.

Unfortunately, this is a reality that, for the most part, is beyond our control.

While we hope to always be around to guide and protect them and be there for their big milestones in life, we still need to prepare for the unexpected.

This includes making the difficult (but necessary) decision to choose a guardian for your child and document it officially within your Will, ensuring they are cared for in the event of your death before they turn 18.

What are the misconceptions about guardianship?

One of the most common misconceptions is that if the parents die, their children will automatically be taken in by family members, such as grandparents, aunts, or uncles.

Another is that if you are named a “godparent” to a child, you automatically gain legal guardianship of them should both parents pass.

This is not the case in England. The role of a godparent is typically just a spiritual or ceremonial one, often linked to religious traditions, and they are generally not responsible for caring for the child if the parents pass away unless they have been formally appointed as a guardian in the will.

What could happen if I do not assign a guardian for my child in my Will?

If you die before your children turn 18 and you have not officially named a guardian for your children, the family courts will have the authority to make the decision.

While the courts will act in the best interests of your children, this process can be time-consuming, potentially causing delays and instability. This is likely to cause additional stress for the already grieving child as well as other loved ones.

Additionally, the court may pick a person that you would not have chosen yourself, and family members may even disagree about who should take on the role, creating more unnecessary tension.

This is why it’s so important to make these decisions as early as possible and have them formally documented, particularly if you already have someone in mind to take on the role – or if there is someone you would never want to be responsible for your child’s care.

If you have children on the way, now might be a good time to start thinking about this.

How to choose the right guardian for your child

Selecting a guardian for your children is one of the most important decisions you’ll ever make, so don’t rush it.

Here are some factors to consider:

Shared values and parenting style – Choose someone whose approach to parenting closely mirrors your own. Consider their beliefs, discipline style, and lifestyle. It’s about continuity and creating a familiar environment for your children.
Health and stability – Consider the guardian’s age, health, and ability to care for your children. While grandparents are often the first people to come to mind, think realistically about their ability to keep up with the demands of parenting young children – especially in the long term. Equally, someone very young, perhaps an older sibling to the child, may not be ready to take on such a huge responsibility.
Location – Staying in the same community can offer continuity in schooling, friendships, and support networks. A local guardian may help minimise the upheaval and help your child maintain a sense of normality.
Financial capability – While guardians aren’t expected to fund everything themselves (you may provide for your children financially through your estate), they should be capable of managing the responsibility and the resources you leave behind.
Willingness – Never assume someone will take on the role without hesitation. It’s crucial to have a candid conversation with your chosen guardian. It’s also wise to name a backup, just in case circumstances change.

Life is unpredictable, so it’s wise to designate a backup guardian in case your first choice is unable or unwilling to take on the role.

Does the guardian need to be a family member?

Not at all. While many people do choose relatives, it’s entirely up to you. The most important thing is that the person you appoint is over 18, legally capable, and willing and able to take on the role.

If you have questions or would like to name a guardian in your Will, our experienced Wills and Probate solicitors can assist you in ensuring your wishes are legally documented. Contact us.

Rachel Blackburn

Head of Wills, Probate and Older Client Services

I joined Mander Hadley’s Wills, Probate and Older Client Services Team in 2018.I specialise in the preparation of Wills, Probate and estate administration, trusts and trust administration and Lasting Powers of Attorney. I also have experience of care fee planning and appeals of Continuing Health Care decisions.

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