How do you nominate a guardian for your children?
In South Africa, a parent who is the sole guardian of a minor child can officially nominate a replacement guardian in their will. If the parent dies, the nominated person assumes legal responsibility for the child, provided they accept the role.
However, the law strictly protects surviving parents. If one parent dies, the surviving biological parent automatically becomes the sole guardian. A will cannot be used to strip a surviving parent of their legal rights.
The surviving parent rule
Under the Children's Act, biological parents generally share co-guardianship of their children. If one parent passes away, the other immediately assumes full, sole guardianship.
This rule applies even if the parents are divorced and the child lives primarily with one parent. A divorced parent cannot use their will to bypass their ex-spouse and assign guardianship to a grandparent or new partner. The surviving biological parent retains their legal right to care for the child.
When a nomination is valid
A guardian nomination in a will only takes legal effect if the person making the will is the last surviving guardian, or if a court has previously stripped the other biological parent of their parental rights.
Section 27 of the Children's Act requires this nomination to be written into a valid will. Verbal agreements or separate letters are not legally binding. When the sole parent dies, the nominated individual acquires guardianship immediately, assuming they accept the appointment.
The High Court as the ultimate guardian
While a will acts as the primary legal instruction, the High Court serves as the "upper guardian" of all minor children in South Africa.
If family members dispute the guardian nominated in the will, or if family members believe the surviving biological parent is unfit to raise the child, they can petition the High Court. The judge evaluates the situation based strictly on the "best interests of the child" standard and has the power to overrule a will or a surviving parent to place the child in a safer environment.
Protecting the inheritance (testamentary trusts)
A guardian's role is to raise and care for the child. They do not automatically gain control of the child's inheritance.
In South Africa, a minor (someone under 18) cannot legally inherit large sums of cash or property directly. If a parent dies and leaves cash directly to a minor, the executor is legally forced to pay that money into the Guardian's Fund, a state-run entity managed by the Master of the High Court. The guardian then has to apply to the state whenever they need money for the child's school fees or maintenance, which can be a slow administrative process.
To keep the money out of the state fund, a will can establish a testamentary trust. The inheritance pays directly into this private trust, and appointed trustees manage the capital, releasing funds to the guardian as needed to care for the child.
Dying without a nominated guardian
If the last surviving parent dies without a valid will nominating a guardian, it creates a legal vacuum. There is no automatic inheritance of guardianship by aunts, uncles, or grandparents.
In this scenario, interested family members must formally apply to the High Court to be appointed as the legal guardians. This is a costly and time-consuming legal process, during which the child's living situation and legal representation are left in a state of uncertainty.
Terms used on this page
- executor
- The person or institution appointed to wind up a deceased estate — collecting the assets, paying the debts and costs, and distributing what remains to the heirs.
- testamentary trust
- A trust created inside a person's will that only comes into existence after their death, typically used to hold and manage money left to minor children.
Sources
Reviewed July 2026