For most parents, this is the question that matters more than any other in estate planning, and it is one that a will, not a feeling of trust in your family, is what actually answers.

Who has parental responsibility while you are alive

A child's mother automatically has parental responsibility from birth. A father has it automatically if he was married to the mother, or named on the birth certificate, or has it through a court order or formal agreement. While at least one parent with parental responsibility is alive, they continue making decisions for the child, as you would expect.

What happens if both parents die without a will

This is where things change sharply. If both parents die and no guardian has been appointed, there is no automatic next person in line, not a grandparent, not an older sibling, not a godparent, however close that relationship is. The court has to decide who takes on responsibility for the child, under the Children Act 1989. This can involve more than one hearing, and in the meantime, a child can end up in temporary foster care while the matter is resolved.

Naming a guardian in your will

A will lets you appoint what is legally known as a testamentary guardian, under Section 5 of the Children Act 1989. There is no required wording, a simple, clear statement naming the person, dated and signed, is enough, though it is best included properly within a professionally drafted will rather than as a standalone note. Once it takes effect, your chosen guardian has the same legal rights and responsibilities as a parent.

Who does not automatically qualify, even if it seems obvious

This surprises a lot of parents.

• Grandparents have no automatic right to care for a grandchild, however involved they already are in that child's life. Without being named as guardian in a will, they would need to apply to the court for a special guardianship order.

• Stepparents do not automatically gain parental responsibility, even if married to the child's biological parent, unless they have separately obtained it through agreement or a court order.

• Adult siblings are not automatically recognised either, and would similarly need to apply to the court.

If you assume a particular relative would simply "take over," and you have not named them in your will, that assumption is not enough in law.

Guardianship and money are two separate things

Appointing a guardian decides who raises your children. It does not automatically decide how their inheritance is managed. Many parents name their chosen guardian as a trustee too, managing money on the children's behalf, but it is worth thinking carefully about whether the same person should do both, combining care and control of money in one person can occasionally create a conflict of interest, which is why some parents prefer to separate the two roles.

What a will lets you do that the court process does not

• Choose who actually raises your children, rather than leaving it to a judge who has never met your family.

• Name a backup guardian, in case your first choice is unable or unwilling to act when the time comes.

• Set out a letter of wishes alongside your will, covering things like schooling, religion, or simply how you would like your children raised, which is not legally binding but carries real weight with whoever steps into that role.

• Decide when children receive their inheritance, rather than the fixed age of 18 that applies automatically under the intestacy rules if there is no will.

The conversation worth having now

Appointing a guardian is not just a legal box to tick, it is worth talking to the person you are considering before you finalise anything. Being a guardian is a genuine, significant responsibility, and the people best placed to take it on deserve the chance to say yes with full understanding of what it involves, rather than finding out after the fact.

Make sure your children are protected, not left to a court's decision. Book Consultation with Everlasting Legacy and we will help you put the right guardianship provisions in place.

This article provides general information about the law in England & Wales and is correct at the time of writing. It is not a substitute for advice tailored to your individual circumstances. Please speak to a qualified adviser before making decisions about your family's future.