Originally published: 21 September 2016 | Last updated: 3 July 2025
TL;DR: Appointing a guardian for your minor children in your Will is one of the most important estate planning decisions. Without a Will, the court decides who raises your children. And may choose someone you would not have selected. In South Africa, you can nominate a guardian in your Will under the Children’s Act 38 of 2005. Always discuss your choice with the proposed guardian before including them in your Will.
TL;DR: Your Will needs guardianship appointments for minor children to function as an essential part of your estate planning. The court will select your children’s future guardian through their authority to manage child custody when no Will exists. The South African Children’s Act 38 of 2005 allows you to select a guardian for your children through your Will. You must discuss your selection with the potential guardian before you add them to your Will.
What Is a Guardian in Estate Planning?
You need to establish a guardian for your minor children because this represents your most vital Will provision which you will create. The court will appoint a guardian when both parents pass away without establishing a guardian because this process allows them to choose someone who would not have received your approval. Your Will functions as the single legal document which allows you to express your wishes about who should raise your children.
How Do You Appoint a Guardian in South Africa?
A guardian is the person who takes care of your minor children under 18 years old when both you and the other parent have passed away. The guardian takes control of the child’s complete care needs which include their educational needs and health maintenance and their overall well-being. The Children’s Act 38 of 2005 serves as South Africa’s legal framework which controls the process of guardianship.
What Should You Consider When Choosing a Guardian?
- You appoint a guardian by naming them in your Last Will and Testament. You need to provide the person’s complete name together with their identification number and explain how they connect to you. You should also appoint an alternate guardian in case your first choice is unable or unwilling to serve. Create your Will with guardian provisions at LegalWills.co.za.
- Values and parenting style: Select a person who shares your values with you
- Location: You need to determine whether your children should move to a new home
- Financial stability: Can the guardian support your children (with or without funds from your estate)?
- Age and health: The guardian needs to have enough physical strength to handle child care responsibilities for multiple decades
- Willingness: Always discuss your choice with the proposed guardian before including them in your Will
- Existing children: You need to evaluate how this decision will affect the children who live with the guardian.
What Happens If You Don’t Appoint a Guardian?
Relationship with your children: Choose someone your children know and trust
Can You Appoint Separate Guardians for Different Children?
A child will receive guardian protection from the Children’s Court when you fail to name a guardian in your Will because the court will select a guardian who meets the child’s needs best. Your family member will take care of your children but you might have to choose someone who you would not want to handle their upbringing. The court needs several months to finish its process which forces your children to stay in temporary care facilities. The court needs separate guardians for each child during the appointment process.
What Is the Difference Between a Guardian and a Trustee?
Yes, though it is generally recommended to keep siblings together. You can appoint different guardians for different children if circumstances warrant it. For example, if children from different relationships would be better placed with their respective families.
Frequently Asked Questions
At what age does guardianship end in South Africa?
A guardian takes responsibility for all aspects of the child’s care needs while also providing proper development guidance. A trustee manages the child’s financial inheritance held in a testamentary trust. You can appoint the same person for both roles, or separate them to provide checks and balances.
Can the other parent override my guardian appointment?
The child reaches adulthood under South African law when they reach their eighteenth birthday which marks the end of guardianship.
Can I appoint a guardian without a Will?
The other parent who has parental rights continues to have custody of the children. Your guardian appointment takes effect only if both parents die or are unable to care for the children.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
