Deciding how to choose guardians for children is one of the hardest parts of making a Will. No parent wants to imagine leaving their children. Even so, naming the right people, and deciding how any money for your children will be managed, gives your family clear direction if the worst happens. This guide explains how guardianship works in England and Wales, how to choose guardians for children, and how to plan for your children’s inheritance.
What guardianship means
A guardian takes on parental responsibility for a child under 18. Guardians make everyday and major decisions about the child’s home, education, health and upbringing. You can appoint one or more guardians in your Will, and you can also name a substitute in case your first choice cannot act.
When a guardian appointment takes effect
The appointment usually takes effect only when no parent with parental responsibility is still alive. So if one parent dies, the surviving parent normally continues to care for the children, and the guardian steps in later. There is one exception. If the parent who dies had a child arrangements order saying the child lives with them, the appointment can take effect straight away.
What happens if no guardian is appointed
If no guardian has been appointed and no parent with parental responsibility survives, nobody has automatic legal authority to care for the children. Family members, friends or the local authority may then need to apply to the family court. The court decides based on the children’s welfare, but the outcome may not be what you would have chosen. Relatives may also disagree about who should care for them.
The practical side of being a guardian
Guardians often face costs straight away, before any inheritance is available. School uniform, food and activities do not wait for the estate to be sorted out. Some guardians may also need a bigger home or car.
The emotional side matters just as much. Guardians help children cope with grief while dealing with their own loss. They also keep children in touch with the wider family and help keep the memory of their parents alive.
Qualities to look for when you choose guardians for children
- Shared values. Think about whether they broadly share your views on education, discipline, religion and lifestyle. Perfect agreement is not needed, but a similar approach avoids sudden upheaval.
- Age, health and energy. Consider whether each person could realistically care for your children for many years. There is no right age, so focus on the individual rather than general assumptions.
- Where they live. Guardians nearby may allow children to stay at the same school and keep their friends. However, the best person might live further away, so think about how much change your children could manage.
- Their relationship with your children. An aunt, uncle, godparent or close friend who is already part of their lives can offer real continuity.
- Sensible with money. Guardians do not need to be wealthy, but it helps if they handle money responsibly.
Thinking about each child
Most parents want siblings to stay together, and that is usually best. However, consider each child’s needs. A child with a disability or additional needs may do best with guardians who understand their condition and the support available. If this applies, it is also worth thinking about a Vulnerable Beneficiary Trust in your Will.
Having the guardian conversation
Always ask people before naming them. Choose a calm, private moment and explain why you have chosen them. Be honest about what the role involves, including any challenges. Talk about practical support too, such as money left on trust for the children and other family members who could help.
Then give them time to think it over. A reluctant yes helps nobody, so it is better to know now if someone has doubts.
Common mistakes to avoid
- Not asking first. Discovering that a guardian is unwilling only after your death adds to the children’s distress.
- Choosing out of obligation. Family expectations are hard to manage, but your children’s welfare comes first.
- Forgetting a substitute. Name a back-up guardian in case your first choice cannot act.
- Never reviewing the choice. The right guardian for toddlers may not suit teenagers, and people’s lives change.
Reviewing your choice as children grow
It is worth checking your choice every few years. Ask yourself whether your guardians are still willing and able to act, and whether their health, family or location has changed. Also consider whether your children, now older, would feel settled with them.
Special situations
Blended families
A step-parent does not automatically have parental responsibility. If you want a step-parent to care for your children, naming them as guardian in your Will makes your wishes clear. Where children have different parents, the arrangements need careful thought.
Unmarried parents
Unmarried partners do not inherit from each other under the intestacy rules, however long they have lived together. So if you are not married or in a civil partnership, a Will is especially important for your partner as well as your children.
Guardians who live abroad
Naming a guardian outside the UK is possible, but it raises extra questions about immigration, schooling and distance from family. We can refer you to an appropriate professional where specialist advice is needed.
Leaving money to children
Guardians look after your children day to day. However, the money you leave them is usually managed by trustees named in your Will. You can appoint the guardians as trustees, or choose different people. Some parents prefer a mix, so that more than one person is involved in decisions about money.
Children under 18 cannot hold an inheritance directly, so any gift to a child is held on trust. The type of trust affects when they take control.
Inheriting at 18
If you simply leave money to a child, they become entitled to it at 18. This is often called a bare trust. The trustees look after the money until then, but at 18 the child can ask for all of it. A bare trust cannot hold the money back until a later age.
Inheriting at a later age
Many parents feel 18 is too young. So instead, a Will can say that a child only inherits if they reach a later age, such as 21 or 25. Until then, the trustees can usually use income or capital for the child’s education, maintenance or general benefit.
A discretionary trust
A discretionary trust gives your trustees flexibility to decide who benefits, when and how much, within a group you choose. This can help where children have different needs, or where you are unsure what the future holds.
Trusts can reduce some risks, such as a young person receiving a large sum at once. However, no trust gives complete protection in every situation, and some trusts have their own tax rules. Where tax advice is needed, we can refer you to an appropriate professional.
Insurance, pensions and savings
Life insurance and pension nominations often pass outside your Will, so check they fit with your overall plans. Questions about life insurance or how much money to set aside are financial matters. We do not give financial advice, but we can refer you to an appropriate professional.
Writing a letter of wishes
Your Will appoints guardians, but it cannot say much about how you would like your children raised. A letter of wishes can. It is not legally binding, but it gives your guardians and trustees valuable guidance, and you can update it without changing your Will.
You might include your children’s medical history, educational needs and routines, as well as your values and family traditions. If you are choosing guardians over other relatives, you can explain your reasons, which may help reduce disagreement. Keep passwords and login details out of the letter and out of your Will, because several people may read them.
How A.D.E. Wills can help
When you choose guardians for children, Edward will talk through your family situation with you and draft clear guardian and trust provisions in your Will. For Wills we write, we can also prepare a letter of wishes for your guardians and trustees. Our Wills are charged at a fixed fee, with any trust priced separately, as shown on our Wills Pricing page. GOV.UK has general guidance on making a Will.
Your initial chat is free and can be online or over the phone. Call 01865 507174 or email info@adewills.co.uk. You can also read more about our Will writing service.
