What Happens to Your Children If Both Parents Die

If you have young children, you can name a guardian in your will to care for them if you die. It is called a testamentary guardian appointment, it takes effect on your death, and it is one clause in a document you probably need anyway. Most parents in Singapore have never done it.

The reason to do it is simple. Without an appointment, nobody has clear authority. Somebody has to go to court, and until they do, your children are in an arrangement that nobody has formally sanctioned, at the point in their lives when certainty matters most. This page covers what a testamentary guardian can and cannot do, what happens with no appointment, how to choose, and how to make sure the arrangement is actually funded.

What a testamentary guardian is

A parent may appoint a guardian to act on their death. The appointment is normally made in a will, which is why it is called a testamentary guardian. It is not the same thing as a guardianship order made during your lifetime, and it does not give the named person any authority while you are alive.

What it does is put a person forward with clear evidence of your wishes, so that the practical arrangements can be made without an immediate contested application. A court can still be involved (the welfare of the child remains the paramount consideration and an appointment is not absolutely binding), but a named appointment starts from a very different place than silence.

The mechanics of appointment and the wider law on guardianship are covered in guardianship of children in Singapore. The clause itself sits within your will, covered in writing a will in Singapore, and it is one of the reasons parents of young children need a will even when they have very little to leave.

Both parents should appoint the same person

This matters more than it sounds. If you name your sister and your spouse names their brother, you have created a conflict that surfaces at exactly the wrong moment. Two appointments pointing in different directions means two sides of a grieving family each holding a document, and a court application to resolve it.

Agree the choice together, name the same person in both wills, and name the same substitute.

What happens if nobody is named

There is no default guardian in Singapore law. Nobody is automatically entitled to take over.

In practice, a relative (a grandparent, an aunt or uncle, sometimes a close family friend) applies to the court for guardianship or custody. The court decides on the welfare principle: what is in the best interests of these children, on the facts. It is a sensible test, but reaching it takes time.

The consequences of leaving it to that process are worth stating plainly:

• Delay. An application takes time to prepare and to be heard. Meanwhile the children are somewhere, with someone, on an informal basis.
• Uncertainty for the children at the moment they can least absorb it, often including where they will live, which school they will attend, and who is allowed to consent to medical treatment.
• Family conflict. Two branches of a family who each genuinely believe they should have the children can end up litigating against each other while grieving. It is one of the most painful categories of family litigation there is, and a will clause would have prevented most of it.
• An outcome you would not have chosen. The court decides on welfare, not on what you would have wanted, because nobody recorded what you would have wanted.

Where grandparents end up raising the children, whether by appointment or by court order, there are practical and financial issues that follow. See grandparents raising grandchildren.

If you are divorced, a guardian does not displace your ex-spouse

This needs saying directly, because a great many divorced parents assume otherwise.

If you die and the other parent survives you, that parent generally continues to have parental responsibility for the children. A testamentary guardian named in your will does not override them. You cannot use your will to hand your children to your mother or your sister instead of their other parent.

That remains broadly the position even where you had sole care and control, because care and control determines where the child lives day to day rather than extinguishing the other parent’s status. The distinction is explained in custody versus care and control.

So a guardian appointment matters most in the scenario where both parents die. That is not a reason to skip it, since it is precisely the scenario the clause exists for, but it does mean the clause is not a tool for managing a relationship with a surviving ex-spouse.

If you have real, evidenced concerns about the other parent’s ability to care for the children, that is a live welfare question to raise now, through the custody framework, while you are alive and able to give evidence. A will cannot do that work for you after your death.

Choosing the right person

Most parents default to the obvious answer (a sibling, or their own parents) without testing it. It is worth thinking about deliberately, because the person who is closest to you is not always the person best placed to raise your children for the next fifteen years.

• Capacity and willingness. Do they have the physical health, energy and time? Are they willing? Ask, rather than assume.
• Age. Grandparents are a natural emotional choice and often the wrong practical one for very young children, simply because of the timeline. A guardian for a three-year-old is signing up for two decades.
• Location. A guardian overseas means the children leave Singapore: a new country, school system and language, on top of losing both parents. Sometimes that is the right answer. It should be a conscious one, and it carries immigration and schooling implications worth checking.
• Values and parenting approach, including religion, education and discipline. Your children will be raised the way this person raises children.
• Existing relationship. A guardian the children already know and trust is a very different proposition from a name they barely recognise.
• Their own family circumstances. Adding your children to their household changes it. Are they stable enough to absorb that?
• Keeping siblings together. Splitting children between relatives is usually the worst outcome. See keeping siblings together.

Name a substitute. Your first choice may predecease you, be unwell, or simply be unable to take it on when the time comes. A substitute costs one extra line in the will.

Separate the guardian from the trustee

Two distinct jobs are involved in raising a child who has inherited an estate, and it is often sensible to split them:

• The guardian raises the children: where they live, school, health, daily decisions.
• The trustee holds and manages the money for the children until they are old enough to receive it, and releases funds for their maintenance and education.

Splitting the roles has real advantages. It gives an independent check on how the children’s money is spent, which protects the guardian as much as the children, since nobody can later suggest they benefited personally. It also relieves a guardian who may be perfectly good with children of investment, tax and accounting responsibilities they never asked for.

The drawback is friction. A guardian who has to ask permission for every school trip will find the arrangement exhausting, and the children will feel it. Good drafting solves this with a sensible allowance paid regularly, plus discretion for larger items. How trusts are structured for this purpose is covered in trusts in Singapore estate planning, and where a child has additional needs, in special needs trusts.

Fund the guardianship

An appointment with no money behind it puts an unfair burden on the guardian and a real one on the children. Raising a child in Singapore is expensive, and a guardian may need to move to a larger home, reduce their working hours, or both.

The usual tools are life insurance, written in trust or with the proceeds directed to the trust for the children, and the estate itself. Two practical points:

• Somebody needs access to money immediately. Estate administration takes months. The guardian should not be funding the children out of their own savings while probate grinds on.
• Say what the money is for. A short letter of wishes to the trustee (covering education, activities, whether the guardian may use funds for housing costs) prevents years of awkwardness.

Tell people, and review it

An appointment nobody knows about is close to useless. Tell the person you have named, and tell them where the will is kept. Tell your executor. If it will not cause a fight, tell the wider family, so that the arrangement is not a surprise in the middle of a funeral.

Then revisit the decision. A guardian appointment made when your children were babies may not suit when they are teenagers, and the person you named may have moved, aged or had their own children in the meantime. Guardianship belongs on the list of things you check every few years, alongside your will, your CPF nomination and your insurance nominations. See the estate planning checklist.