What happens to my child if I die without making a Will?

What happens to my child if I die without making a Will?

Parents can often worry about what will happen to their child if they die without making a Will and their child is under the age of 18 years.  The first thing to consider is who has parental responsibility.

Who has parental responsibility?

If parents are married at the time their child is born, they will both have parental responsibility.  This remains the case if they later separate or divorce.  If one parent dies, the surviving parent with parental responsibility will be responsible for looking after the child until they reach the age of 18 years if they die without making a Will.

If parents are unmarried at the time their child is born, whilst a mother automatically has parental responsibility from birth, a father will only automatically have parental responsibility if his name is registered on the birth certificate.

If the father’s name is not registered on the birth certificate, he can obtain parental responsibility by entering into a parental responsibility agreement with the mother or obtaining a parental responsibility agreement from the court.

If parents are unmarried and one parent dies without making a Will, if there is a surviving parent with parental responsibility, they will be responsible for looking after the child until they reach the age of 18 years.

What happens if both parents with parental responsibility die without making a Will and the child is under the age of 18 years?

If no provision has been made in a Will as to who will look after the child in the event of both parents’ deaths, it will be for the Court to decide who is to be appointed guardians for the child.  This can be upsetting and unsettling for both the child and other family members at what is already a distressing and difficult time.   This additional upset can be avoided by making a Will and appointing guardians to take care of your child in the event of your death.  Being able to choose who will take care of your child can help parents feel more at ease about their child’s future.

It is however important to note that appointment of a guardian will only take effect if there is no surviving parent with parental responsibility.

What rights and responsibilities will my appointed guardians have?

A guardian appointed in a Will will be given parental responsibility and will have the same rights and responsibilities as the parent who appointed them.   This means the guardian will be responsible for making decisions about the child’s welfare, education, and medical treatment.  It is therefore crucial to give careful thought to who you will appoint.  It is also a good idea to discuss it with those you intend to appoint as guardians to ensure that they are able to take on the responsibility of caring for your child in the event of your death.

However, although the guardian will gain parental responsibility over the child, this does not grant the guardian an automatic right to have the child live with them.  An application to the court for a child arrangements order or a special guardianship order is required for the guardian to be legally recognised as the person with who the child lives. The child can however live with the guardian without a court order, but it is prudent to make the application so that the living arrangements are legally recognised.

It is important to note, however, that if there is any disagreement about where the child lives, a court order would be required.

Can I tell my guardians how to bring up my child?

Whilst it is a good idea to give your guardians some flexibility in their role (as your child’s needs may change as they develop and grow), you can give some guidance on how you would like your children to be looked after by providing a letter of wishes.  A letter of wishes is not legally binding but it can certainly make it easier for the guardians if they have some guidance from you on key issues such as, the type of education you would like them to receive, food preferences, interests they have, any religious faith and friends and family you would like them to maintain contact with if possible.

I have appointed guardians in my Will, do I need to do anything else?

If you have appointed guardians in your Will, it is wise to review that decision from time to time to ensure those appointed would still be able to take up their role if necessary.  Often when parents have very young children, they may appoint grandparents, who at the time of appointment may be relatively young and fit enough to take up the role.  However, bringing up a child is a big responsibility and can be both physically and mentally challenging which may become too much for grandparents as they reach later years.

It is also wise to review any letter of wishes at the same time, as your views on how you would like your child brought up may have altered or your child’s interests may have changed.

For further information, please contact please contact a member of our Private Client team at Kerseys Solicitors in Ipswich on 01473 213311, Kerseys Solicitors in Colchester on 01206 584584 or Kerseys Solicitors in Felixstowe on 01394 834557 or email us at [email protected].  Alternatively visit our website and click “Call Me Back” or try our online calculator for a free no obligation quote.