by Rebecca Griffiths
Private Client Solicitor, Dean Wilson
It’s one of the hardest things to think about, yet one of the most important. What would happen to your children if the unthinkable happened and you weren’t around to care for them?
Many parents assume that their wishes would automatically be followed, that a close family member would step in, or that some conversation they had years ago would be enough. Unfortunately, that’s not how the law works. Unless you’ve clearly recorded your wishes in a legally valid will, decisions about your children’s future could be left in the hands of the courts.
Wills aren’t just for later life
A large number of people don’t have a will in place. It’s something many associate with retirement or older age, often pushed down the to-do list in favour of more immediate concerns. But for parents with young children, putting a will in place is one of the most important steps you can take to ensure their future is protected.
Dying without a will (known as dying intestate) leaves everything to be handled according to strict legal rules, not personal intentions. For young families, this can create a host of issues, especially when it comes to deciding who should care for your children.
Why making a will matters when you have children
A will isn’t just about dividing up your money or property. For parents, one of the most powerful things a will does is appoint legal guardians for your children if they’re under 18. Without this, there’s no formal guidance about who should take over parental responsibility.
In practise, this means:
• Social services may need to get involved immediately after your death.
• Family members may disagree or struggle to step in without the right authority.
• A judge may have to decide where your children live, and it might not be with the person you’d choose.
It can be distressing to imagine your children caught in legal limbo during what would already be a traumatic time. Setting out your intentions now can help prevent added confusion, delay or family conflict later.
What does ‘guardianship’ actually mean?
A legal guardian is someone who steps into your shoes as a parent if you’re no longer around. They take over day-to-day decision-making, such as where your children live, which school they go to, and what medical treatment they receive.
If you’re the only person with parental responsibility, for example a single parent or if the other parent isn’t involved, appointing a guardian is essential. But even in two-parent households, a joint appointment can give clarity if something happens to both of you at the same time.
Parental responsibility doesn’t pass automatically to grandparents, godparents or siblings. Even those closest to you could face a long and uncertain process before they’re able to care for your children legally.
How does the court decide if there’s no will?
If no guardian is named, the Family Court will step in. It will look at a range of factors, including:
• The child’s relationship with different family members.
• Where the child has been living.
• Any existing arrangements in place.
While the court’s priority is always the child’s best interests, this process can be slow and emotionally draining. In some cases, more than one family member may want to take on the role. Even if you’ve discussed your wishes informally, they won’t carry legal weight unless they’re set out in a properly drafted will.
What should I consider when choosing a guardian?
It’s not an easy decision, but here are a few things to think about:
• Stability – are they in a secure place emotionally, financially and geographically?
• Parenting style – do they share similar values or beliefs to you?
• Relationship with your children – is there already a strong, trusting bond?
• Age and health – will they realistically be able to support your children into adulthood?
It’s also worth thinking about the practicalities. Do they have children of their own? Would your children need to move school or city? Could they manage the financial and emotional demands?
It’s a good idea to talk to the person or couple you’re considering to make sure they’re willing and able to take on the role. You can also appoint backup guardians in case your first choice is unable to act when the time comes.
What about stepchildren or children from previous relationships?
The law doesn’t automatically treat all children equally unless you’ve made that clear in your will. If you’d like a guardian to care for all the children you raise as your own, regardless of biological ties, it’s especially important to spell this out in writing. This avoids confusion and ensures your entire family is considered as a whole.
Keeping your will up to date
Life moves on, and so should your plans. If your chosen guardian moves abroad, your children’s needs change, or you separate from a partner, your will should be reviewed and updated. It’s also worth reviewing your will after significant life events, such as the birth of another child, a marriage or divorce.
None of us like to dwell on worst-case scenarios, especially when it comes to our children. But making a will is a powerful act of love and responsibility. It means you’ve made a conscious, considered plan for your children’s future, one that reflects your values, provides clarity in the most difficult of times, and gives those left behind the guidance they’ll need.
Putting these arrangements in place now doesn’t mean you’re expecting the worst. It simply means you’re prepared.
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