Why is it Important to Include Substitute Guardians in Your Will?

When you create a Will, you do so with the best intentions to deliver for those you care about after you die.

Whereas the main considerations are obvious – who will receive part or all of your estate, for example, and who might your executors be – there are layers of decision making that need to be considered by the testator (the person creating the Will).

One such decision is whether to include substitute guardians in your Will. If you have children, who looks after them should you pass away is a hugely important decision, one never taken lightly by parents.

Would you leave that decision to chance?

This article looks at the context of this role in the Wills process and the merits of having one or more in place.

What is a substitute guardian?

A guardian is a person named in the process of creating a Will who is assigned a role in the care of dependents, depending on circumstances.

If the testator dies and the Will comes into action, their children, if under the age of 18, will need a guardian to look after them and act in the role of parent with the responsibilities that go with that.

However, should the original named guardian be unable to fulfil this role, through choice or circumstance, then the substitute would assume this role.

You need someone you trust to raise your child/children, so consideration of who to select as their guardian or substitute guardian should be thought out.

Why might a substitute guardian be required?

What happens if a guardian, selected by the deceased, can’t or won’t fulfil their duties?

Life is different for each person, and the circumstances of someone’s life can change after the original moment when they agreed to be a guardian.

Ill health, relocation, or no longer accepting the responsibility are all possibilities. The responsibilities then, by law, fall to the substitute.

The benefit of naming a substitute guardian

By naming a substitute guardian, it provides a back-up plan and caters for many eventualities.

What it also does is help avoid potentially costly court intervention should executors have to apply for guardianship, or in the instance that executors disagree as to the outcomes of the children in question.

This step provides much needed certainty, removing potential ambiguity that may lead to custody battles.

The immediacy of transferring the legal childcare responsibilities, when set in a Will, also prevents further disruption to the children in relation to daily routines, school, and other important parts of a child’s life at a time of great uncertainty for them.

What does our team say?

One of our Wills, Probate, and Trust experts, solicitor Josef Lythe, echoed the benefits of a substitute guardian being named, providing clear guidance for executors during a difficult time.

He said: “It is incredibly important to consider the appointment of a legal guardian and also substitute legal guardian in your Will if you have minor children.

“Including a substitute guardian helps future proof the Will and ensure it covers varying scenarios that may not be predictable at the time the Will is prepared. It simply helps guarantee your children are cared for by the people you trust.”

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