Who Gets Your Kids If You Die? Why Guardianship Belongs in Your Will
September is Wills Month: a useful reminder that creating a will is not only about dividing your assets. If you are a parent, your will should also help answer an urgent question:
Who will care for your children if you die?
Many parents assume that family will “just sort it out”. They may expect a grandparent, sibling or close family friend to step in. But unless you make your wishes clear and legally effective, your family may face uncertainty, disagreement and court processes at an already painful time.
Naming a guardian in your will does not remove the court’s responsibility to protect your child’s best interests. It does, however, give your family and the court a clear indication of who you trust to care for your children.
Understand What Happens If You Do Nothing
If you die without a valid will, your estate is generally distributed under the Intestate Succession Act. This determines who may inherit from your estate. It does not, by itself, appoint someone to raise your children.
Guardianship is dealt with separately under the Children’s Act 38 of 2005.
If one parent dies and the other parent remains alive with parental rights, the surviving parent will generally continue as the child’s natural guardian and caregiver. A will cannot simply remove that parent’s legal rights.
The position becomes more complicated when:
Both parents have died;
The surviving parent’s rights have been removed or limited by a court;
There is a dispute about who should care for the child; or
The deceased parent was the child’s sole guardian or had sole care.
There is no automatic rule that a grandparent, aunt, uncle or older sibling becomes the guardian. If no suitable guardian has been nominated, an interested person may need to approach the court. The High Court is the upper guardian of all minor children and will make its decision according to the child’s best interests.
That process can take time and may involve legal costs, social worker reports and disagreements between relatives.
Distinguish Guardianship from Care
The words “guardian” and “custodian” are often used as though they mean the same thing. They do not.
In South African law, care generally concerns the child’s day-to-day life. This includes:
Where the child lives;
Who takes the child to school and medical appointments;
Daily routines, supervision and support; and
The child’s general upbringing.
Guardianship concerns important legal responsibilities and decisions. A guardian may need to:
Consent to certain medical procedures;
Apply for or manage the child’s passport;
Make decisions about education;
Represent the child in legal or administrative matters; and
Assist with managing property or inheritance belonging to the child.
One person may provide the child’s day-to-day care while another person helps manage financial assets through a trust or other estate-planning arrangement.
For example, you may believe that your sister is the best person to raise your children, but you may want an independent trustee to manage any inheritance until your children are mature enough to handle it. Your will should address these responsibilities clearly rather than assuming that one person must do everything.
Appoint a Guardian Properly in Your Will
Under section 27 of the Children’s Act, a parent who is the sole guardian may appoint a fit and proper person as guardian in their will. A parent with sole care may also appoint a person to assume care of the child after the parent’s death.
The appointment must be contained in the will. A conversation, WhatsApp message, informal letter or verbal promise is not a substitute for a properly drafted and signed will.
Your guardian clause should identify the person accurately and explain the appointment clearly. It should usually include:
The proposed guardian’s full legal name;
Their identity number or other identifying details;
Their relationship with your child;
Whether they are appointed to provide care, guardianship or both;
The appointment’s relationship to section 27 of the Children’s Act;
An alternate guardian; and
Any instructions about joint appointments or decision-making.
The person you nominate must still accept the responsibility. The court also retains oversight and will not allow an appointment that is inconsistent with the child’s best interests.
If another biological parent is alive and retains guardianship, your nomination cannot simply override that parent. It may still communicate your preference, but the legal position will depend on the circumstances and any existing court orders.
Choose Someone Who Can Truly Parent Your Child
Do not choose a guardian based only on family expectations or who lives closest to you. Consider the practical reality of raising your children.
Ask yourself:
Does this person have a stable and safe home?
Do they have a strong, trusting relationship with your children?
Are they physically and emotionally able to provide long-term care?
Do they share your important values about education, discipline and culture?
Can they keep siblings together, where appropriate?
Are they willing to care for your children, rather than merely feeling obliged?
Do they live close enough to maintain schooling and family relationships?
Can they manage the children’s emotional, medical and educational needs?
Would your children feel secure living with this person?
Does the person understand that guardianship may involve legal and financial responsibilities?
The court’s central concern will be the child’s best interests. Factors may include the child’s relationship with the proposed guardian, continuity of care, safety, stability, emotional needs, cultural and family connections, and the child’s own views where appropriate.
Your choice is important, but it is not the only consideration. A court may investigate circumstances and consider reports before confirming or making an appointment.
Nominate a Backup Guardian
Your first-choice guardian may die before you, become unable to care for your children, move overseas or decide that they cannot accept the responsibility.
That is why you should nominate an alternate guardian in your will.
A backup appointment helps avoid unnecessary uncertainty. It also allows you to explain whether the alternate should step in automatically if the first person cannot act, or whether more than one person should be considered together.
Discuss the nomination with both people before signing your will. This gives them an opportunity to think about:
Housing and schooling arrangements;
Medical and special-care needs;
Contact with extended family;
Religious or cultural practices;
Travel and relocation; and
How your children’s inheritance will be managed.
You should also tell them where your original will and important documents are kept.
Avoid Mistakes That Can Weaken the Clause
A guardian nomination may not achieve what you intend if the will itself is invalid or the clause is unclear.
Common mistakes include:
Relying on an informal letter instead of including the appointment in the will;
Using an outdated will after divorce, remarriage, birth or adoption;
Providing incomplete or incorrect details for the proposed guardian;
Naming someone who has not agreed to the responsibility;
Failing to nominate a backup guardian;
Appointing a guardian without explaining whether the appointment includes care;
Using contradictory clauses in different versions of the will;
Allowing a proposed beneficiary or guardian to witness the will; and
Signing or witnessing the will incorrectly.
Under the Wills Act, a person who benefits under a will may face legal consequences if they sign as a witness. Since an appointment as guardian may be treated as a benefit, the person you nominate should not act as a witness to your will.
A properly drafted will should be signed and witnessed in accordance with the applicable legal formalities. Do not assume that downloading a template and signing it casually will provide adequate protection.
Plan for Your Children’s Inheritance Too
Guardianship and inheritance planning should work together.
If a minor child inherits directly, managing that inheritance can become complicated. Depending on the circumstances, funds may be paid into the Guardian’s Fund or be subject to additional administrative processes. The Master of the High Court provides information about deceased estates and the Guardian’s Fund.
You may also consider a testamentary trust to hold and manage assets for your children. A trust does not replace a guardian. Instead, it can help ensure that financial decisions are made according to the terms of your estate plan rather than leaving the caregiver to manage everything alone.
TRM Legal and Tax Advisory Services can help you consider your will, guardianship wishes and broader estate-planning needs together. You can also review TRM’s trust deed service where a trust may form part of your planning.
Review Your Will After Major Life Events
Your will should not be a document you sign once and forget.
Review it after:
The birth or adoption of a child;
Divorce, separation or remarriage;
The death or incapacity of a nominated guardian;
A major change in your relationship with the proposed guardian;
Relocation within South Africa or to another country;
A significant change in your assets or liabilities; or
A change in your child’s medical, educational or special-care needs.
Keep the current original will safely stored and destroy or clearly revoke outdated versions only with appropriate legal guidance. Multiple competing documents can create confusion about your final wishes.
Use This Consultation Checklist
Before meeting your legal adviser, prepare:
Your children’s full names and birth details;
The full details of your proposed guardian;
The details of your alternate guardian;
Confirmation that both people are willing to be considered;
Your preferences about schooling, culture and family contact;
Information about existing court orders or parenting arrangements;
A list of major assets and liabilities; and
Any questions about a testamentary trust or the Guardian’s Fund.
You can start your estate-planning discussion through TRM Legal and Tax Advisory Services or explore the company’s available legal products and services.
Protect Their Future with a Clear Plan
Your family may be willing to help, but they should not have to guess what you wanted. A valid will with a carefully considered guardian nomination gives your children greater continuity and gives your loved ones a clear legal starting point.
This Wills Month, take the practical step: choose a suitable guardian, speak to them openly, nominate a backup and have your will reviewed or drafted correctly.
You cannot control every future event. You can, however, make your wishes clear and help protect the people who matter most.
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