Originally published: 16 May 2016 | Last updated: 14 August 2025
TL;DR: When both parents pass away without selecting a guardian through their Will, a family court judge will decide who should take responsibility for your children. The judge has the power to select a family member for guardianship who nobody would have chosen otherwise. A Will operates as the exclusive legal document which lets you declare your desired guardian for your children. LegalWills.co.uk allows users to pick guardians while they need to explain their decisions and they can block specific people from becoming guardians.
Why is naming a guardian the most important reason for parents to write a Will?
All parents who have children under 18 years old must create a Will. Parents should focus on naming a legal guardian because this particular provision holds the highest value above all other asset distribution matters. A Will lets you create a plan which shows how your property should distribute after death.
Choose who will raise your children if both parents die
Describe why your selected guardian makes the best candidate to take on this responsibility.
Exclude specific individuals you do not want appointed
You must select backup guardians who will take over when your primary guardian choices become unavailable.
The court judge must decide on family matters because you did not choose a guardian in your Will and the judge has no information about your relatives.
What happens if you do not name a guardian?
The court will hear Child Arrangements Order requests from any person who wants to become guardian when both parents pass away without establishing a guardian. Judges reach their decisions by analyzing all the evidence which court officials show them. Key problems with this process:
The judge does not know your family: They use applicant evaluation based on child connection and financial standing and residential situation and age group. The decision does not depend on shared values or parenting philosophy or your individual knowledge about every person.
The court must select a guardian from blood relatives who meet certain standards but you would not select this person yourself.
Family conflict is common: Multiple relatives competing for guardianship creates bitter disputes during an already traumatic time for your children.
The court process creates a long period of uncertainty which causes emotional pain for your children who must wait to find their permanent home.
How do you choose the right guardian?
Parents must face their most difficult challenge when they need to select a guardian for their children. Analyze these elements which you should evaluate:
Factor
What to Consider
Values and beliefsDo they share your approach to education, religion, discipline, and lifestyle?
Relationship with your childrenDo your children already know and trust this person?
Age and healthAre they young and healthy enough to raise children for the next 10: 18 years?
WillingnessHave they agreed to take on this responsibility? Always ask before naming someone.
LocationWill your children need to change schools or move away from friends?
Financial stabilityCan they support additional children? (You can help by leaving funds in trust for your children’s care.)
Existing familyDo they have their own children? How would the dynamics work?
Can you exclude someone from being appointed guardian?
Yes. Your Will can explicitly state that a specific person should not be appointed as guardian. A court will probably pay attention to your Will because you included specific reasons which you explained in your document. You need this document to stop any relative from seeking custody of your child when you start to worry about their potential involvement.
Should both parents name the same guardian?
Both parents need to create Wills which should include the same individual as their guardian selection. The guardian appointment will not matter if only one parent has a Will and the surviving parent dies without creating a Will. LegalWills.co.uk allows couples to generate matching Wills which identify identical guardians who will take care of their children after either parent passes away.
What is the legal basis for guardian appointments in the UK?
The Children Act 1989 allows parents who have parental responsibility to create a Will which designates a guardian who will care for their children. The appointment takes effect when both parents (or the sole surviving parent) have died. The guardian then has parental responsibility for the child, including decisions about education, medical treatment, and where the child lives.
Important legal points:
The guardian appointment must be in writing, dated, and signed (a properly executed Will satisfies this)
If both parents appoint different guardians, both appointments take effect and the guardians must cooperate or apply to the court
A guardian can disclaim the appointment within a reasonable time
The court keeps control of all decisions and it can cancel guardian appointments when they prove to be against what benefits the child most.
Frequently Asked Questions
At what age does the guardian appointment end?
A guardian’s appointment lasts until the child reaches 18. A child becomes an adult through legal recognition which ends all requirements for guardian oversight.
Can a guardian be someone who is not a family member?
Yes. You can name any adult as guardian. A close friend, a godparent, or anyone you trust. There is no requirement that the guardian be a blood relative.
What if my chosen guardian cannot serve when the time comes?
You should select a backup guardian in your Will because this document protects your children. The alternate guardian will assume all responsibilities of the primary guardian when that person dies or becomes unable to perform their duties or turns unsuitable for the role.
Can I name joint guardians?
Yes. You can appoint two people as joint guardians. This practice occurs frequently between married partners who decide to select their sister and her spouse as joint guardians. The two individuals would share responsibility for their children’s care.
Does naming a guardian in my Will guarantee they will be appointed?
The legal system follows this rule in most situations. The court applies major support to a parent’s stated preferences. The court makes decisions about child appointments through its primary concern for child welfare standards which enables the court to reject appointments under specific conditions.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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