Protecting Your Children: Guardianship and Minor Planning

No parent wants to think about it, but every parent must: what happens to your children if both of you die? In India, if both parents of minor children die without a will naming a guardian, the court decides who raises your children. The court's choice may not be yours.

Under the Hindu Minority and Guardianship Act 1956, the natural guardian of a Hindu child is the father, and after him the mother; a child under five normally stays in the mother's custody. No one else becomes a guardian automatically: not a grandparent, not your sister, not your closest friend. If both parents die without naming a guardian, someone has to apply to a court under the Guardians and Wards Act 1890, and the court chooses whoever it thinks best serves the child's welfare. That may not be the person you would have picked.

A guardian you name in your will (a testamentary guardian) carries real weight. While the child's other parent is alive, that parent normally stays the guardian; under the Act, a father's choice takes effect only if the mother also dies without naming someone. Naming a guardian does not bind the court completely, because the child's welfare comes first, but it puts your wishes on record and makes them hard to set aside without good reason.

Beyond guardianship, financial planning for minor children requires a trust or a clear will structure. Assets left to minors are managed by the guardian, which creates potential for misuse. A testamentary trust, set up through your will, can ring-fence assets and specify how and when they are released to your children.

Sort My Legacy's Will Builder, for people living in India, has a Guardianship step that appears when you say you have minor children: name your preferred guardian and an alternate, and set out the financial provisions for your children. For the wider question of who would raise your children, see how to name a guardian.

General information, not legal, tax or financial advice. Laws and rules change, so check with a qualified lawyer or CA before you act.