Appointing a Guardian in Your Will UK — How to Protect Your Children

If you have children under 18, appointing a guardian in your will is the only legally binding way to choose who raises them if both parents die. Without it, the court decides — and may not choose the person you would have wanted.

This article covers England, Wales, Scotland, and Northern Ireland. The law differs slightly between jurisdictions, and each has its own section below.

What Is a Legal Guardian?

A legal guardian is a person with parental responsibility for a child — the authority to make decisions about their upbringing, welfare, education, and medical care. Under section 5 of the Children Act 1989 (England and Wales), a person can be appointed as a guardian in a will to take over parental responsibility if the parents die.

There are two types of guardian:

• Testamentary guardian — appointed in a will. This is the only way to make a legally binding guardianship choice.
• Court-appointed guardian — appointed by a judge if there is no will or if the will's appointment is challenged or unsuitable.

Once appointed, a guardian has the same parental responsibility as a parent — they can make decisions about schooling, medical treatment, religion, and where the child lives. They do not need court approval for routine decisions but would need to apply to the court for significant decisions such as emigration or adoption.

What Happens If You Don't Appoint a Guardian

The consequences are serious and not hypothetical.

When both parents die without naming a guardian, the court applies the welfare of the child principle — the paramount consideration in all children proceedings. The court can appoint a guardian from family members, close friends, or in rare cases, anyone else who applies and demonstrates suitability. There is no automatic preference for grandparents, siblings, or other relatives.

The process is expensive, slow, and public:

• Legal costs: Court proceedings for guardianship can cost £5,000 to £20,000 or more in solicitor fees, particularly if family members disagree about who should care for the children.
• Delays: Court proceedings take months. During this time, children may be placed with foster carers or in temporary accommodation while the dispute is resolved.
• Family disputes: Multiple family members may apply to be guardians. The court has to choose between them, which can cause lasting rifts.
• Unpredictable outcomes: The court makes a decision based on the children's welfare — not on what the parents would have wanted. There is no guarantee the outcome matches your wishes.
• Temporary care: While proceedings are ongoing, local authority children's services may place children in foster care. This is traumatic and not in their interests.

Appointing a guardian in your will costs nothing extra. It is included in every ClearWill will for parents with children under 18. The alternative — leaving it to a court — is the most consequential decision you will not be part of.

How to Appoint a Guardian in Your Will

The appointment must meet the same formal requirements as the will itself — it is not a casual instruction, it is a legal appointment.

The will must be:

• In writing
• Signed by the testator (the person making the will)
• Witnessed by two independent witnesses present at the same time
• Witnesses must be aged 18 or over and not beneficiaries

When naming a guardian, include:

• Their full legal name — not a nickname
• Their relationship to your child — for example, sister of the deceased, or close family friend
• Backup guardian — always name a second choice in case your first choice cannot or will not act

You can also name different guardians for different children if your family situation requires it. This is less common but entirely valid. You should discuss this with the people involved and ensure the arrangement is practical — separate guardians for siblings can mean children growing up in different households.

Who Should You Choose?

This is the hardest part and there is no perfect answer — only the best answer for your family. Consider the following factors:

• Age and health: Can they realistically raise children through to adulthood? There is no age limit, but the courts will consider whether someone is physically and emotionally capable.
• Location: Where do they live? Moving children far from their school, friends, and community is disruptive. If your guardian lives overseas, this is a serious consideration.
• Values and parenting style: Do they share your approach to education, religion, and discipline? Guardianship means they make these decisions, not you.
• Financial stability: Guardianship is unpaid. The guardian does not receive compensation for raising your children. Can they afford it? Your will should include financial provision for your children (see below).
• Relationship with your children: Do your children know and trust this person? Have they spent time in their home? Children who know their guardian adjust more easily in a crisis.
• Willingness to serve: Have you asked them? Guardianship is a significant commitment. A person who has not been asked may feel unable to say no when presented with a fait accompli in a will. Ask first.
• Existing family: Does the guardian have their own children? Can they manage additional children alongside their own? This is not disqualifying — many families blend seamlessly — but it is a practical consideration.

Both parents should agree on the choice. If you and your co-parent disagree about who should be guardian, resolve it before making your wills. A disagreement between parents in separate wills creates ambiguity that the court may have to resolve.

What a Guardian Can and Cannot Do

A guardian with parental responsibility can make decisions about:

• Education and schooling
• Medical treatment and healthcare
• Religion and spiritual upbringing
• Where the child lives (including relocation within the UK)
• Day-to-day care, diet, and activities

A guardian cannot:

• Change the child's name without court approval
• Emigrate with the child without court approval
• Adopt the child without a court order
• Automatically receive or manage the child's inheritance — this is a critical distinction (see below)

Guardianship vs Custody — Not the Same Thing

Guardianship and custody address different situations:

Situation	Who decides
Parents separate (both alive)	Court order or agreement (child arrangements order)
Both parents die	Guardian named in will, or court
One parent dies	Surviving parent has parental responsibility; guardian not needed unless surviving parent also unable to care

Step-parents and guardianship: A step-parent does not automatically have parental responsibility, even if they are married to a parent. They can acquire it by applying to the court, but this is a separate process from the will. If you are a step-parent and want guardianship rights, this needs to be addressed in your own will as a separate appointment.

Financial Provision for Your Children

Guardianship and inheritance are separate concerns, and they need to be planned separately. Here is why this matters: if your children's inheritance is paid to their guardian, it may not be protected. The guardian could spend it, or it could become mixed with their own finances.

The solution is a trust.

When you leave an inheritance to minor children in your will, it should be held in trust with independent trustees. The trustees invest the money and distribute it on terms you specify — for example, at age 25, or in instalments at 18, 21, and 25. This separates the financial management from the guardianship and ensures the money is used for your children's benefit.

You should consider:

• Life insurance in trust: A policy written in trust pays out directly to trustees, outside the estate and outside probate. It can fund immediate costs when you die — school fees, housing, living expenses — without waiting for the estate to be administered.
• Age-contingent inheritance: Specify in your will when children receive their inheritance outright. Age 18 is legally valid but many parents prefer 25 — believing that a young adult at 18 may not be ready to manage a significant sum. ClearWill lets you specify this in your will questionnaire.
• Separate trustees from guardians: Appoint different people to the guardian role and the trustee role. A guardian managing their own children's inheritance creates a conflict of interest — they decide what is in the child's interest, including their own use of the funds. Separate trustees with a formal duty to act in the children's interests is cleaner and more protective.

For more on inheritance planning for children, see: What to Include in a Will UK — The Complete Checklist.

Scotland: Guardianship Under the Children (Scotland) Act 1995

Scotland's framework for guardianship was reformed by the Children (Scotland) Act 1995, which replaced the older terminology of tutors and curators with guardian. The principle is the same: a parent can appoint a guardian in their will.

Under section 7 of the 1995 Act, any person with parental responsibility may appoint a guardian in a will. The appointment takes effect when the person making the will has died and the child has no parent with parental responsibility, or the surviving parent is unable or unwilling to exercise it.

Key differences from England and Wales:

• A minimum age of 16 to make a will in Scotland (compared to 18 in E&W)
• A Scottish holograph will (entirely handwritten, dated, and signed) does not need witnesses — though a witnessed will is safer and clearer
• The court applies the welfare principle, with particular regard to the child's views where practicable
• For child inheritance trusts, the Trusts (Scotland) Act 2024 provides updated trustee duties and reporting requirements — relevant for larger estates

Scotland's legal rights system (prior rights and legal rights) does not apply to guardianship appointments — these are separate succession rules governing adult inheritance, not child care. The guardian appointment in a will is valid in Scotland as in England and Wales.

Northern Ireland: Children (Northern Ireland) Order 1995

Northern Ireland follows the Children (Northern Ireland) Order 1995, which is broadly analogous to the Children Act 1989 in England and Wales. A parent with parental responsibility can appoint a guardian in their will. The appointment takes effect on the parent's death if the child has no other parent with parental responsibility, or if the surviving parent is unable or unwilling to act.

The welfare principle applies — the court considers the child's best interests above all else. An appointment in a will carries significant weight but can be challenged in court if there are welfare concerns about the named guardian.

ClearWill covers all three UK jurisdictions. If you live in Northern Ireland, you can make your will through ClearWill with full NI-specific provisions.

Updating Your Guardianship Choices

Your guardianship appointment should be reviewed whenever your circumstances change:

• New relationship: If you remarry or form a new long-term partnership, consider whether the new partner should be guardian — or whether naming them would be harmful to your children if the relationship breaks down.
• Guardian's circumstances change: If your named guardian moves abroad, develops a serious illness, or experiences a significant change in their family situation, update your will.
• Children's needs change: As children grow, their needs change. A teenager may have specific preferences about who they would want to live with if the worst happened. Take their views into account — even if you do not follow them.
• Death of a named guardian: If your first or second choice guardian dies, update your will immediately.

To update your will, you can either:

• Codicil: A short amendment document that changes specific provisions. Valid in England, Wales, and Northern Ireland. Must meet the same formal requirements as a will (signed, witnessed). Suitable for simple changes like swapping one guardian for another.
• New will: Automatically revokes all previous wills. Use this when the changes are more substantial or when the existing will is several years old and you want to review everything together.

ClearWill makes it easy to update your will — you can rewrite your will at any time through your account. For guidance on updating, see: How to Update or Change Your Will UK — Codicils, Revocation & When to Rewrite.

Frequently Asked Questions

Who can be appointed as a guardian in a UK will?

Any adult aged 18 or over (21 in Scotland) can be appointed. You should choose someone with parental capacity — stable, reliable, and willing to take on the responsibility. They do not need to be a family member; a close family friend can be appointed. Both parents should agree on the choice where possible.

Can I appoint a different guardian for each of my children?

Yes. While uncommon, you can name different guardians for different children in your will. This may be relevant in blended families. Consider whether splitting guardianship would keep siblings separated, and discuss this with the people involved before making your will.

What is the difference between a guardian and a trustee?

A guardian takes over parental responsibility — day-to-day decisions about your children's upbringing, education, and welfare. A trustee manages the financial inheritance left to your children, investing assets and distributing them at specified ages. These are separate roles and it is generally better to appoint different people to each, to avoid conflicts of interest.

Does appointing a guardian mean they automatically inherit my child's inheritance?

No. Guardianship and inheritance are completely separate. A guardian cares for your children but does not automatically receive or manage their inheritance. Your children's inheritance should be held in a trust with independent trustees, invested and distributed on terms you specify in your will (for example, at age 25).

How do I update or change the guardian I have appointed?

You can update a guardian by making a new will or adding a codicil. Your new will automatically revokes the old one. Review your guardianship appointment whenever your circumstances change — a new relationship, a guardian moving abroad, or the guardian's own circumstances changing.

What happens if both parents die but only one has named a guardian?

If the surviving parent is still alive, they have parental responsibility and the guardian appointment in the deceased parent's will is generally not needed. Guardianship activates when both parents have died, or when the surviving parent is also unable to care for the children.

Related: How to Write a Will UK — Complete Guide | What to Include in a Will UK — Checklist | What Happens If You Die Without a Will — Intestacy Rules | How to Update a Will — Codicils & Revocation