What Happens to My Children if I Die?

In most cases, if one parent dies and the other parent is alive and has parental responsibility, that surviving parent continues to care for the children as before. This remains true whether or not the deceased parent had a will, and whether or not the couple were married, provided the surviving parent has parental responsibility.

What a will does affect in this situation is inheritance and estate administration: who receives money and property from the deceased parent's estate, and who is responsible for managing it, including any share left for the children. Without a will, this is decided by the intestacy rules, which may not match what the parent would have chosen, particularly for unmarried couples.

This is where guardianship appointments become critical. If both parents die, or if there is no one else with parental responsibility for a child, a guardian appointed under section 5 of the Children Act 1989 in a valid will normally takes on parental responsibility and becomes responsible for the children's care.

If there is no guardian appointed in a will, the decision about who cares for the children is made by the family court, drawing on relatives who apply to be considered, guided by what is in the children's best interests. This can mean court proceedings, delay, and a decision made by people other than the parents, which is precisely what a guardianship appointment in a will is designed to avoid.

Whatever a parent leaves to their children under a will, whether specific gifts or a share of the estate, does not usually pass to them outright straight away if they are under 18. Instead it is normally held on trust by the executors or trustees named in the will, to be managed on the children's behalf until they reach the age chosen for them to inherit, commonly 18, 21 or 25.

Trustees can usually apply money for a child's maintenance, education and general benefit before that age is reached, so a later vesting age does not prevent money being used sensibly along the way. Without a will, children inherit under the intestacy rules once they turn 18, with no flexibility to choose a later age or attach any conditions.

Executors and trustees named in a will are responsible for collecting in the estate, paying any debts or tax due, and then managing or distributing what remains according to the will's terms. Where children are involved, this often means years of ongoing responsibility as trustees, managing funds carefully and keeping records of how money is spent for the children's benefit.

Choosing people you trust for these roles, and considering whether they should be the same people as any guardian you appoint, is one of the more important decisions in a parent's will, alongside the choice of guardian itself.

The overall picture is that a will gives parents real control over two separate but related questions: who looks after their children, and how any money and property is managed and eventually passed on. Without a will, both questions are answered by statutory default rules and, in the case of guardianship where needed, potentially by a court.

For most parents, making a will that appoints a guardian, chooses trusted executors and trustees, and sets a sensible inheritance age addresses the most important uncertainties directly, rather than leaving them to be resolved after the event.