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Wills & Probate | Who Will Look After Your Children If You Die?

Updated: Aug 7, 2023

When we think of orphaned children many of us tend to think about war-torn or third world countries and the images we’ve become so used to seeing on the news. In fact, I don’t think I’d be too far wrong to say that some of us have even become desensitised to those images. I’d even hazard a guess that it’s because most of us in the developed world couldn’t begin to imagine that we might die when our children are young. And that’s because it’s likely we would be young ourselves and it is just human nature I suppose that prevents us from being too concerned with our own mortality before a certain age.

But we ought to think about it. And the reason is that 41,000 children are bereaved in the UK every year. According to children’s bereavement charity Winston’s Wish, approximately two children under 16 are bereaved of a parent every hour.

We speak about this kind of thing every day in our area of law, and whilst most people are shocked at those figures, that’s not what shocks them most. What we tell them next, is.

If you ask the average person who they think would automatically look after their minor (under the age of 18) children if they were to die, you would probably hear answers ranging from, their grandparents, siblings, aunts, uncles. A typical favourite is godparents. Actually, they would all be wrong. Unless a guardian has specifically been named in a Will, absolutely anyone can step forward and ask to be the child’s guardian. The person who ultimately decides who gets custody, however, is a judge.

In the meantime, your child could be taken in by social services and placed into foster care.

Whatever your thoughts are about social services, good or bad, is that something you really want to risk?

How do you make sure that doesn’t happen?

Make a Will and appoint a guardian. If you’re married, in a civil partnership or cohabiting, it’s very likely you will be able to speak to your other half and discuss what you would want. If your children are a little bit older you perhaps might want to include them in the conversation if you’re all comfortable.

If you don’t live with your child’s other parent, you can still appoint a guardian in your Will. Of course, you can almost never deny guardianship from another parent with parental responsibility, and it might be that you choose different people under the circumstances. In most cases though, guardianship applies to the last parent to die so it’s important that they are appointed whatever your circumstances.

Don’t play Russian roulette with your children’s lives. Make a Will, appoint a guardian and protect them from the added trauma of uncertainty over who will keep them safe when you are not here.

The information provided in this article is not intended to constitute legal advice and you should take full and comprehensive legal advice on your individual circumstances by a fully qualified Solicitor before you embark on any course of action.

Wills, Trusts & Probate Team

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