Appointing guardians for your children: who raises them, who controls the money, and what happens if you don't choose

Most parents make a will because they want to control what happens to their assets. For parents of young children, an even more important question is who would look after the children themselves if both parents died. This is the part of the will many people put off because the scenarios involved are painful to think about.

But the alternative, leaving it to the courts to decide, is one of the few outcomes worse than thinking about it now.

What happens if you do not appoint a guardian

If both parents die without a will, or with a will that does not name guardians, the family courts decide who looks after the children. The court will consider applications from family members and others, weigh the welfare of the child, and decide. The process is not quick, the outcome is not always the one the parents would have chosen, and during the gap the children sit in a legal limbo.

In the worst cases, this is precisely the moment when family disagreements about how the children should be raised come to the surface. Aunts, uncles, grandparents, and step-relatives may all hold strong and conflicting views. The court adjudicates between them. The children are at the centre of an argument they did not start.

Appointing guardians in your will

The guardian appointment is one of the simplest parts of a will. Both parents (assuming both hold parental responsibility) can nominate one or more guardians to take parental responsibility on their deaths. The appointment takes effect when the second parent dies, provided no other person with parental responsibility is alive.

The choice is rarely obvious. Most parents end up choosing between a sibling, a parent, or a close friend. Each option carries different practical implications. Siblings may be the natural choice but they are often raising children of their own. Grandparents may be willing, but their age matters; a 70-year-old grandparent stepping in to raise a five-year-old is taking on a long commitment. Close friends can be the right choice for continuity if they live nearby and know the children well, but they are sometimes overlooked in favour of blood relatives.

The right answer is not the same as the obvious answer. It is worth talking to whoever you have in mind before naming them. A guardian who is surprised by the appointment is in a much weaker position to step in well.

Separating care from money

One of the most useful things a will can do for a family with young children is separate the question of who raises the children from the question of who manages the money. These are different jobs and different skills, and putting them in the same hands can create a conflict of interest.

The will appoints guardians to take care of the children. Separately, it can appoint trustees, who manage the assets in a trust for the children's benefit. The guardians and the trustees can be the same people, but in many families it makes more sense for them to be different.

This avoids a situation where, for example, a guardian decides to spend trust money on a larger home or different schooling without anyone independent weighing those decisions against the children's longer-term financial interests.

Why 18 is usually the wrong age to hand over money

Under the intestacy rules, children inherit at 18 absolutely, with no further protection. Many parents, when they think about it concretely, are uncomfortable with that. An 18-year-old who has just lost both parents, dealing with grief and a transition out of school, may not be the right person to manage a six-figure inheritance well.

A will can defer that. The most common arrangements either set an age later than 18 (often 21 or 25), or place the money in a discretionary trust where the trustees decide what to release and when. Discretionary trusts give flexibility to respond to the actual circumstances of each child rather than locking in a date now.

This is not about distrusting your children. It is about acknowledging that grief, youth, and a sudden lump sum is a difficult combination, and giving the next generation a buffer.

A letter of wishes

Alongside the will, a letter of wishes lets you explain to the guardians and trustees what you would like to happen in practice. The letter is not legally binding, but it gives the people doing the job a clear picture of your thinking.

• Where should the children live? In the family home, or with the guardians? Both are possible and each has implications.
• What schools, religious upbringing, or extended family relationships matter to you?
• How should the trustees think about funding the guardians' expenses? Should they pay a contribution towards the household, school fees, or holidays?
• At what ages should the children receive larger amounts of capital?
• Are there specific gifts or memories you want preserved?

None of these answers are obvious in the moment. A letter of wishes gives you the space to think them through now, while you can.

Special considerations

Some situations need more care than the standard arrangement.

• Where the children's parents are separated or divorced, both parents still need to think about guardian appointments. If both die in close succession, both wills matter.
• Where one child has additional needs and may not be able to manage an inheritance independently, a discretionary trust is often the right structure, and means-tested benefits can be considered properly.
• Where the family has assets in another country, the guardian and trust arrangements may interact with foreign legal systems. This is worth flagging with a specialist.

The honest case for doing this now

The reason most parents do not have guardians named is not that they cannot decide. It is that the decision feels distant and uncomfortable. The discomfort is real, but the gap it leaves is far worse for the children involved.

Drafting this part of a will is straightforward. The conversation with the proposed guardians is the harder part, and the part you cannot delegate. Done well, it puts the people you trust most in a position to step in cleanly if the worst happens. Done not at all, it puts the family courts in that position instead.

Simply Estate is an estate planning firm. Our team can draft a will that names guardians, sets up a trust to protect your children's inheritance until they are ready for it, and gives clear effect to your letter of wishes. Visit our will writing page to get started.