Guardianship Considerations for South African Parents Living in Germany

Many South African parents living in Germany find themselves awake at night with one pressing thought: What would happen to my children if something happened to me?

It’s a sobering question — one we’d rather not dwell on — but as parents living far from extended family and familiar systems, it’s a crucial one to face head-on.
Take action today, not out of fear, but out of love. And do speak to a legal professional who understands your unique cross-border situation.

Disclamer and purpose of this article

The information shared in this article is intended to raise awareness and help South African families living in Germany better understand the types of issues that may arise around guardianship and custody. It is not legal advice. Every family’s situation is unique, especially when international custody, dual citizenship, or remarriage are involved.
Key terms such as Sorgerechtsverfügung (guardianship declaration), Vormundschaft (legal guardianship), and Nachlassgericht (probate court) are important to understand when navigating this topic.
We strongly recommend speaking with a qualified legal professional — ideally one familiar with both German and South African family law — to ensure your wishes are clearly stated, legally recognised, and in your child’s best interest.

Why You Need to Plan Ahead

In the unfortunate and rare event that both parents pass away, the question of guardianship is not automatically resolved, and it certainly isn’t resolved in a way that always reflects your wishes unless you’ve clearly set them out in the correct legal format. This is especially true for South Africans living abroad, where two legal systems may be involved: German law (where the family lives), and South African law (where nationality or property ties may still exist).

Without clear instructions, the decision of who will care for your children can fall to the local youth welfare office (Jugendamt) or family courts. While these institutions aim to act in the best interests of the child, they may not know your family situation, values, or long-distance support network, especially if no formal arrangements have been made.

Some Considerations for Peace of Mind

The best safety net for your children is the one you thoughtfully prepare before it’s ever needed. While we can’t offer legal advice, we can help you think through some of the practical questions that many South African parents living in Germany face.
Most of these topics you may want to discuss with a qualified lawyer or Notar in both countries.

Dual Recognition of Your Will

Is your will, and the guardianship clause within it, recognised under both South African and German law?
If not, what steps could be taken to ensure your wishes are respected in both jurisdictions?

Registration of Wills

Do your wills need to be formally registered, for example with the Nachlassgericht (German probate court), or in South Africa?
This may help avoid unnecessary delays or confusion later on.

Consistency Across Borders

If you have wills in both countries, do they say the same thing—especially when it comes to guardianship?
Conflicting instructions can cause distress, delays, and uncertainty for the people left behind.
Be clear and specific: avoid vague phrases like “my sister will take care of the kids.” Instead, name the person, include identifying information (such as their passport or ID number), and describe the role you’re entrusting to them.

Willing and Able

Have you spoken to your chosen guardians?
Are they emotionally ready, financially stable, and legally able to take on the responsibility?
Who can step in immediately to care for your children in Germany, before the named guardian arrives?
Consider whether you need to appoint a temporary guardian—someone already living nearby and familiar with your children’s routines.

Dual Nationality? Double the Complexity

For naturalised German citizens who also hold South African citizenship, things can get even more complex. Guardianship, inheritance, and even custody can involve legal questions across two jurisdictions.
You may have family members in South Africa whom you would trust with your children, but without a proper guardianship declaration recognised in Germany, their ability to step in could be limited or delayed.

Blended Families & Cross-Border Custody

If you’re a parent living in Germany who has remarried, and your child’s other biological parent lives in South Africa, it’s important to consider the added complexity this brings. Custody arrangements across two countries can affect who ultimately cares for your child if something happens to you.
Even if you live with a loving step-parent, German courts will still consider the legal rights of the other biological parent, especially if custody is still shared. Legal guidance can help ensure your child’s best interests are protected.

Germany - Sorgerechtsverfügung

Guardianship declaration (Sorgerechtsverfügung) allows parents or single parents to pre-appoint who should become the legal guardian (Vormund) of their minor children in the event of their death. You can include guardianship instructions (Sorgerechtsverfügung) directly in your German will or make a standalone declaration that you can file with the Nachlassgericht.
It must follow the German formal requirements (e.g., handwritten or notarised, signed with full name, includes place/date) to be recognised by German authorities, especially if filed with the Nachlassgericht (probate court).
The family court (Familiengericht) will still review the nomination, but your wishes carry significant weight.
The legal framework can be found in the German Civil Code (Bürgerliches Gesetzbuch – BGB), particularly in:

Division 3 – covering guardianship, legal curatorship, and custodianship
§2303 BGB – outlining Pflichtteil, the statutory right of inheritance for close relatives, which may come into play in broader estate planning

What Can You Do?

We are not lawyers, and this isn’t legal advice — but we can tell you what other families are doing, and what professionals suggest parents look into:

Draft a will and include guardianship wishes: Make sure it includes a clause specifying who should care for your children. This is known in international law as a testamentary guardianship declaration.
Consider the “Article 22” clause in the EU Succession Regulation if you want your will to be governed by South African law.
Get it translated and notarised if necessary, so it’s recognised in Germany. In some cases, you may need a Vorsorgevollmacht or a separate declaration that aligns with German standards.
Have Wills in Both Countries? Make Sure They Match. If you maintain a will in both South Africa and Germany, double-check that they don’t contradict each other — especially when it comes to naming guardians. Misalignment can lead to confusion or delays in caring for your children.
Talk to a qualified legal professional in Germany. A qualified lawyer or Notar familiar with international family law can help you make arrangements that are both legally binding and respected in both countries. This is especially important for dual nationals or families with mixed jurisdictions..
Let someone know — the person you nominate, family members, and even trusted friends or godparents — so they can act quickly if needed. Make sure they understand what is expected of them. Be honest about financial expectations. Give them a copy of the relevant documents (or tell them where to find them)
Schengen Visa – It is highly beneficial if the appointed guardian(s) can travel to Germany when needed. One practical solution is the 5-year multiple-entry Schengen visa, which enables flexible and repeated travel over an extended period.

Including Guardianship Instructions in a South African Will

You may wish to include guardianship instructions in your South African will. This is commonly referred to as a testamentary guardianship appointment and is recognised under South African law. However, if you’re residing in Germany, there are some important considerations to be aware of:

South African wills are not automatically valid in Germany.
To potentially give your South African will legal effect in Germany, it may be advisable to include a “choice of law” clause, specifically under Article 22 of the EU Succession Regulation. This clause generally indicates that your estate (including any guardianship clauses) should be interpreted under South African law. Please consult with a legal professional familiar with cross-border inheritance law to ensure your will is correctly structured and valid in both jurisdictions.
It is essential to recognise that German family courts are not strictly bound by guardianship appointments outlined in a foreign will. If the nominated guardian is unavailable or deemed not to be in the child’s best interests, the court may appoint someone else.

South African Law: What the Children’s Act Says
According to Section 27 of the Children’s Act (Act 38 of 2005):

(1) (a) A parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of the death of the parent.
(b) A parent who has the sole care of a child may appoint a fit and proper person to be vested with the care of the child in the event of the death of the parent.
(2) An appointment in terms of subsection (1) must be contained in a will made by the parent.
(3) A person appointed in terms of subsection (1) acquires guardianship or care, as the case may be, in respect of a child:
(a) after the death of the parent, and
(b) upon the person’s express or implied acceptance of the appointment.
(4) If two or more persons are appointed as guardians or to be vested with the care of the child, any one or more or all of them may accept the appointment, except if the appointment provides otherwise.

Please note: This information is intended for general awareness and does not constitute legal advice. For personal guidance, we recommend speaking to a qualified legal professional in both South Africa and Germany.

The Jugendamt

In Germany, if no legal guardian has been clearly named, the Jugendamt (Youth Welfare Office) will step in to protect the child’s welfare. Their role is to act in the best interest of the child, which may include placing the child in temporary care until a permanent arrangement is made by the Familiengericht (Family Court).
If you’d prefer that your children are cared for by someone you know and trust, it’s important to make your guardianship wishes known in a legally recognised way—and to do so before a crisis occurs.
While we can’t offer legal advice, many families find peace of mind by discussing these matters early with a qualified legal professional who understands both the South African and German systems.

Information on the web

Sorgerechtsverfügung bei Gericht hinterlegen from the Hamburg Protal
Department of Justice (SA) – Guardians and Custodians
South Africa – Children’s Act, 38 of 2005. See Section 27 for guardians
German Civil Code (BGB §1773 for Vormund and BGB §2303 Pflichtteil)

Useful Terms

English Term	German Term	Notes
Guardianship declaration	Sorgerechtsverfügung	Used to appoint a legal guardian for minor children in case of death.
Legal guardianship	Vormundschaft	Court-appointed guardianship after parents’ death or loss of custody rights.
Will / Testament	Testament	Legal document stating final wishes, including guardianship.
Parental custody	elterliche Sorge	Covers both legal and physical custody rights.
Custody court	Familiengericht	Family court responsible for guardianship decisions.
Probate court	Nachlassgericht	Handles the legal deposit of wills and guardianship declarations.
Deposit record	Hinterlegungsprotokoll	Official record created when a will or declaration is deposited in court.
Deposit certificate	Hinterlegungsschein	Proof issued by the court confirming receipt of the document.
Youth Welfare Office	Jugendamt	Intervenes if no legal guardian is appointed.
Living will / advance directive	Patientenverfügung	Applies to medical care; not directly related to child guardianship.
Power of attorney	Vorsorgevollmacht	Authorises someone to make legal decisions if you’re incapacitated.
Applicable law clause	Rechtswahlklausel (z. B. nach Artikel 22)	Allows you to choose South African law in your will.

South Africans in Germany