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What would happen to my children if I was to die without a will?

Posted on: 26/05/2022

What would happen to your children if you were to die without a will? It’s a bleak topic, and probably not something that you want to think about, but something that needs to be considered.

As a parent, you’ll want to make sure that your children will be well looked after and cared for after your death.

In this article, Wills & Tax Partner James Hammersley discusses how you can ensure that this is the case and that your children are taken care of according to your wishes.

What would happen to my children if I was to die without a will?

This depends on the circumstances of the situation. Below I’ve outlined some different scenarios and discussed what would happen:

There’s a surviving parent with parental responsibility and no Child Arrangements Order (CAO)

If there's no CAO (a Residence/Live with Order) that was made to you regarding the children during your lifetime, and there's a surviving parent who has parental responsibility at the time of your passing then this parent would become solely responsible for your child/children.

This is regardless of whether the child sees the parent.

What if there’s a Live with or Residence order in place?

If there was a Live with Order or Residence Order in place granted to you then the appointment of a testamentary Guardian takes effect immediately on death and that guardian gains parental responsibility which could be shared with the surviving parent (as long as they had parental responsibility).

Is a court order necessary?

The above process does not confer an automatic entitlement to have the child live with the testamentary guardian.

An application to court for a Child Arrangements Order or a Special Guardianship Order is required to legally be recognised as the person with whom the child lives.

That is not to say that the child is unable to live with the guardian in the absence of a court order. However, a court order would be necessary if there is a dispute over where the child is to live.

There is no surviving parent/no-one with parental responsibility

If there is no surviving parent/no-one with parental responsibility at the time of your death, then your child would be regarded under the Children Act as a child in need.

Children’s Services (Social Services) will become involved to assess where the child would be best placed (A Relative, Foster Carer or even sometimes in Care).

If there are family members who wishes to care for the child, then they can apply to the court either for a Residence (Live With) Order or a Special Guardianship Order as referred to above.

Click here to read the full article, where James outlines how the court appoints a guardian and why its important to create a will.

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