From Serious to Entertaining: Blogs on Legal Matters

Once you have children, making a will becomes more of a priority than it may have been before. You want to make sure that your children are looked after financially if you both die unexpectedly.

While ensuring that your children inherit your estate is important, it's not the only way you can make sure they're cared for. Your lawyer may also recommend that you name a guardian in your will. This person will look after your kids if you both die. Do you have to choose a guardian now and what happens if you don't?

Is Naming a Guardian Essential? 

You won't be forced to nominate someone to be your children's guardian in your will. This is purely voluntary. However, this is a good idea. Knowing that you have a guardian in place gives you peace of mind that your kids will be well cared for if they lose both of you. You'll have chosen someone who will love your kids and bring them up the way you would like.

If you can't decide on a guardian or think your kids will go to the right person anyway, then you may decide not to add a guardian in your will. This isn't a great idea. Why?

What Happens if You Don't Nominate a Guardian?

If both of you die without nominating a guardian for your kids, and your children are minors, then a court has to decide who looks after your family. This is often a simple decision that you'd be happy with. For example, if your parents offer to take custody of your kids and nobody else comes forward, then the court is likely to rule in their favour if they are suitable guardians. If you'd have named your parents as guardians anyway, this is fine.

You don't, however, have any say in the matter at this stage if you haven't named a guardian in your will. For example, say that your sister makes an application to the court to get custody as well as your parents. You've never wanted your sister to have the kids, but the court rules in her favour. If you'd named your parents as guardians, this wouldn't have been an issue. The courts wouldn't have had to be involved, and your kids would automatically have gone to live with their grandparents.

To avoid future issues with guardianship, it's better to nominate a guardian when you make your will. If you need help choosing the right person or family, ask your lawyer for advice.