A Testamentary Guardian is the person you name in your Will to bring up your children if you die while they're under 18. "Testamentary" simply means made by Will. Once your appointment takes effect, your Guardian has full parental responsibility for your children, just as you did, so they can make every decision about their home, schooling and health.
Key Takeaways
- A Testamentary Guardian is appointed in your Will to look after your children under 18 if you die.
- Usually the appointment only takes effect when no parent with parental responsibility is still alive, for example after both parents have died.
- Your Guardian takes on full parental responsibility for your children (Children Act 1989, section 5).
- With no Guardian named, a court may have to decide who brings up your children, and it may not be who you'd have chosen.
- Choose carefully, ask first, and name a replacement in case your first choice can't act.
This guide covers the law in England and Wales. Scotland and Northern Ireland have their own rules.
What does a Testamentary Guardian do?
A Testamentary Guardian steps into your shoes as a parent. They take on full parental responsibility for your children, which covers every part of their upbringing and wellbeing: where they live, their schooling, their healthcare and their religion. In practice, your Guardian brings your children up as their own.
That's why it matters so much who you choose. Your Guardian will be making the day-to-day and life-changing decisions you would have made, so it's essential that they share your views, values and outlook on life.
A Guardian isn't responsible for paying for your children out of their own pocket. Money you leave your children is usually held for them by your Trustees until they reach the age you set in your Will, and the Trustees can release money to the Guardian to help with your children's upkeep and education. There's more on this below.
When does a Testamentary Guardian take over?
In most families, a Guardian named in your Will only takes over when there's no parent with parental responsibility left to care for your children (Children Act 1989, section 5). So if you die and your children's other parent is still alive and has parental responsibility, they carry on bringing the children up. Your appointment waits in the background, and only takes effect if the other parent also dies while the children are under 18.
There's one important exception for separated families. If a court order said your children were to live with you, and not with the other parent, your Guardian's appointment can take effect straight away when you die. Your Guardian would then share parental responsibility with the surviving parent. If this applies to you, it's worth talking it through with us.
Who can appoint a Testamentary Guardian?
Only a parent with parental responsibility can appoint a Guardian. A mother automatically has parental responsibility, and so does a father who was married to the mother when the child was born. An unmarried father has it automatically if he's named on the birth certificate and the birth was registered on or after 1 December 2003. Otherwise, he can gain it through a parental responsibility agreement with the mother or a court order (Children Act 1989, section 4).
Where both parents have parental responsibility, each of them can appoint Guardians in their own Will. Couples making Mirror Wills usually name the same Guardians in both, so there's no doubt about their wishes. A Guardian can also appoint someone to take over from them if they die while still caring for your children. We automatically include this power in our Wills.
What happens if you don't appoint a Guardian?
If you die without naming a Guardian, and no parent with parental responsibility survives you, nobody has an automatic right to look after your children. Even a grandparent, aunt or uncle who has always said they'd step in would have to apply to the court to be appointed. That takes time at an already distressing point in your children's lives, and the court may not choose the person you would have wanted.
Naming a Guardian in your Will takes away that uncertainty. It's one of the most important reasons for parents of young children to make a Will at all. Read more about what happens if you die without a Will.
How do you choose the right Guardian?
Choosing a Guardian is often the hardest decision in a Will. These are the questions we encourage parents to think through:
- Do they share your values? Your Guardian will make decisions about your children's education, health and beliefs, so you want someone whose outlook is close to your own.
- Are they able to take it on? Think about their age, health, the size of their home and their own family commitments.
- Where do they live? Would you really want your children uprooted from their school and friends to live with your sister in New Zealand?
- Can the children stay together? If you have more than one child under 18, would you want them separated?
- How would it be paid for? Bringing up extra children is expensive. Talk about where the money would come from (see the next section).
Many people think first of their own parents. It can seem the easy choice, but when it's thought through, it's often not the most practical one. As any grandparent will tell you, while it's lovely to look after the grandchildren, it's sometimes nice to be able to hand them back!
Always ask your chosen Guardian before you name them, and make sure they're willing to act. A Guardian can refuse the role, in writing, after your death (Children Act 1989, section 6), so it's far better to know now. Name an alternative too, in case your first choice can't act when the time comes. And it's wise for your Guardians to make Wills of their own.
How can you help your Guardians with the cost?
Taking on someone else's children is a big financial commitment, even for the most willing Guardian. There are several ways you can make sure the money is there when it's needed:
- Family income benefit, written in Trust for your Guardians. This is a type of term life insurance that pays a regular income, rather than one lump sum, if you die during the policy term. The term can be set to run until your youngest child reaches a certain age, for example 21. Your Guardians receive the income to help with the day-to-day costs of bringing up your children.
- A term life insurance policy, written in Trust for your Guardians. This pays a lump sum on your death, to be used for your children's care and maintenance.
- A legacy in your Will, held in Trust. You can leave a sum of money in Trust in your Will, with your Guardians among the people who can benefit. In your letter of wishes, you tell your Trustees what you'd like to happen: for example, that if your children are under 18 when you die, a certain amount should go to the Guardians to help with their upkeep. Our guide to Trusts in Wills explains how letters of wishes work.
Insurance is paid for by you, the parent, while you're alive, and premiums are usually lowest when you're young and healthy. A single parent may find these options especially important, because there's no second parent to step in. Writing a policy in Trust means the money is paid to the Trustees for your Guardians, rather than into your estate. A financial adviser can explain which kind of policy would suit your family.
In our experience, a legacy in your Will held in Trust is often the best solution, because it uses what you already have and your Trustees can respond to your children's needs as they arise. But every family is different, and we're happy to talk through the options with you.
Can your Executors also be Guardians?
Yes. You can appoint the same people as your Executors and your Guardians if you wish. But it's worth understanding how the two roles fit together.
Most parents leave their estate to their children, but choose an age at which the children will actually receive it, often 18, 21 or 25. Until then, your Executors hold the money for them as Trustees, under what's known as a Testamentary Trust. During that time the Trustees can release money to the Guardians to help with your children's maintenance and education.
If your Guardians and Trustees are the same people, they would effectively be approving payments to themselves. That isn't forbidden, but it's a potential conflict of interest. Some parents prefer to keep the roles separate, or to appoint at least one Trustee who isn't also a Guardian, so there's a second pair of eyes on the money. Our guide to Trusts in Wills explains how Trusts work in more detail.
Frequently asked questions
Is a Testamentary Guardian the same as a legal guardian?
Yes. Once the appointment takes effect, a Testamentary Guardian is your children's legal guardian, with full parental responsibility. "Testamentary" just describes how they were appointed: by your Will.
Does a Guardian have to be appointed in a Will?
No. The law allows a Guardian to be appointed in any document that is in writing, dated and signed by the parent (Children Act 1989, section 5). But a Will is the usual and safest place, because it's kept safe with your other wishes and your Executors will know to look for it.
Can I appoint a couple as joint Guardians?
Yes, you can appoint two or more people to act together. Think about what you'd want if the couple later separated, or if one of them died. You can name them individually and say who should act on their own if needed.
What happens to the appointment if I divorce?
If you appointed your husband, wife or civil partner as Guardian, the appointment is normally cancelled automatically if your marriage or civil partnership ends in divorce, dissolution or annulment, unless your Will says otherwise (Children Act 1989, section 6). Divorce is a good moment to review your whole Will.
Is a Testamentary Guardian the same as a special guardian?
No. A special guardian is appointed by a court, usually while the parents are still alive, when a child can't live with them. A Testamentary Guardian is chosen by you, in your Will, to take over after your death.
The short version: name your Guardians now
If you have children under 18, naming a Testamentary Guardian in your Will is one of the most important things you can do for them. Choose someone who shares your values, ask them first, and name a back-up. Every Will we prepare is checked by our Will Team, including your Guardian appointments. Read more about the Guardian's role, or see how much a Will costs.
About this guide
This guide was written and checked by the Downloadawill Will Team. It explains the law in general terms and isn't legal advice for your own situation. Downloadawill is a trading style of Direct Wills. All our Will Writers are Members of The Society of Will Writers. We've been writing Wills for people in England and Wales since 1997. Read more about us.
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