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What would happen to my children if I die?

13 Jun 2019

Are you happy with what would happen to your children if you and your partner both died?

This isn’t a nice question to ask but is an entirely normal thought and occurs across households every minute of the day.  It is important to take steps to make sure your children are taken care of in the event of both parents dying.

Understanding the state of play from a practical and legal point of view means you can choose how to address this question.

No Will?

If both parents died without a Will which appoints a guardian (a guardian is essentially much the same as a parent and can include the day to day care of the child and making decisions about how they are looked after, educated and treated medically until they reach the age of 18) the position is that those bereaved children become the responsibility of the Court. There is no legal presumption that a child must live with a biological parent after the death of the other. 

Furthermore, without a Will in place, if the parents are married or in a civil partnership the children are only entitled to an inheritance if their parent’s estate is worth more than £250,000 or if the parent’s spouse or civil partner has also passed away.

More than 100 children a day are bereaved of a parent; do you have plans in place in the event you and your partner die?

Who would look after my children if I died?

If you have Parental responsibility for your children, then you can appoint a guardian (or two if it is a couple) for your children in your Will. This way you can be sure that the children will be looked after by the people you choose, not left to chance or up to the Court to decide.   Where a guardian has been appointed, responsibility for the children’s care is able to pass immediately on the death of the last surviving parent to that guardian.  The guardian is likely to be an individual who has previously agreed to act as guardian and who the child knows and trusts.

Legal complications and uncertainty can be easily avoided by appointing a guardian.

There are lots of things to consider when choosing a guardian as they will not only be responsible for the day-to-day care of the children but will also need to make all key decisions about their education, health and welfare. You should think about where they live, and if this would involve a move away from your children’s friends. Grandparents are often a good choice, as are your siblings or close friends, but it is important to discuss the Guardianship with the person you will nominate beforehand. It is also a good idea to nominate another guardian in the event the people you appoint are unable to act, for example if your parents are nominated but are too elderly to look after the children if you die.

If no legal guardian has been appointed – what happens to my children?

The fact is not having guardians appointed for your children means that the care of your children at the time of your death may be an issue.  A possibility is that the children could end up in care while the Court appoints a guardian of its choosing.  

The Court will decide what is best for the children and whilst the Court will take in account the wishes and feelings of the child concerned, the weight attached varies depending on the age and maturity of the child concerned. 

A Will is the only way to ensure your children are safeguarded

The simplest way to ensure that your children are looked after according to your wishes is to include details of who you would like to be their guardian(s) in your Will.  By choosing to appoint guardians now, there is the benefit of being able to discuss with your chosen guardians and your family to your wishes and help avoid later disputes about who should care for the children.  Some people choose to discuss the matter with their children as well, if they feel it is appropriate.

Supporting bereaved children

Losing a parent is understandably a difficult time for children and their families: There are a number of agencies available to support children who have lost parents or close family members, including Winston’s Wish , Child Bereavement UK and Grief Encounter.

Making a Will

Hepburn Delaney’s specialist Wills and probate team can prepare your Wills to ensure that your children are well cared for after your death. Please contact our team here or on 01442 218090.