What Happens if Both Parents Die?

If both parents die, and there is a guardian appointed in a valid will made by either parent, that guardian normally takes on parental responsibility for the children. Where both parents have appointed the same person, or agreed appointments, this is straightforward. Where parents made different wills naming different guardians, both appointments can, in principle, take effect together, potentially resulting in more than one guardian, which can create practical difficulties if those people do not get on or live far apart.

For this reason, it is strongly advisable for parents to discuss and agree on the same guardian wherever possible, so the appointment is clear and workable rather than open to conflict at an already difficult time.

If neither parent appointed a guardian, or the appointment fails for some reason, such as the named guardian having died or being unable to act, then no one automatically has parental responsibility for the children. In that situation, an application would usually be made to the family court, often by a relative willing to care for the children, and the court decides based on what is in the children's best interests.

This process can involve more than one family member coming forward, sometimes with different views about what is best, and inevitably takes time to resolve through the court system. It is precisely the kind of situation that a guardianship appointment in a will is designed to prevent, by making the decision in advance rather than leaving it to be worked out afterwards.

If both parents have wills, each parent's estate is distributed according to their own will, which typically leaves everything, or a share, to the children, held on trust by the executors and trustees named until the children reach the chosen inheritance age, commonly 18, 21 or 25. If the wills name the same executors and trustees, the administration of both estates can often be coordinated sensibly for the children's benefit.

If one or both parents die without a will, their estate passes to the children under the intestacy rules once they reach 18, without the flexibility of a trust structure or the ability to set a later, more considered age for the children to receive it outright.

Where both parents have died, the guardian caring for the children day to day may need ongoing financial support from the estate, for example for housing, school fees or general living costs. This is usually arranged through the trustees, who can release funds for the children's maintenance, education and benefit even before they reach the age at which they inherit outright.

It is worth thinking through, when making your will, roughly how much support a guardian might reasonably need and giving your trustees clear enough guidance, whether through a letter of wishes or the will itself, so that decisions can be made confidently rather than left ambiguous.

The scenario of both parents dying is statistically unlikely for most families, but its consequences for children are significant enough that most parents feel the small amount of time it takes to appoint a guardian and make wills is well worth it. It replaces uncertainty and potential family conflict with a clear, agreed plan.

If you and your children's other parent have not yet discussed and agreed on a guardian, or if you have separate wills naming different people, it is worth resolving this directly rather than leaving it unaddressed. A short conversation now can prevent a much harder situation for your children and wider family later.