What Happens To My Children If I Die? Guardianship & Wills

If you have children under the age of 18, it’s essential to plan carefully to protect their future. The best way to do this is to appoint legal guardians in your Will. 

A surviving parent will automatically be responsible for the child or children, but in the event of both parents dying, a guardian will take over parental responsibilities and care for your offspring. And if you haven’t named a guardian (or two) in your Will, it will fall to the court to decide.

Appointing a guardian can be an easy decision or one that requires a lot of thought. If you’re wondering “What happens to my children if I die?”, we will show you how to choose a legal guardian, how to appoint a legal guardian, and what their responsibilities include.

What is a legal guardian?

If you pass away, a surviving parent will usually continue to have full responsibility for your child or children. However, if neither parent survives before your children turn 18, then a legal guardian you have appointed is legally responsible for looking after them.

What happens to my children if I die?

If your children are orphaned before they reach the age of 18 and you have not appointed guardians, then the court will appoint them instead. This means they may not choose the people you want to look after your children. 

You can ensure that your children are looked after by the people you think are right for the job by proactively choosing guardians for them.

What are a guardian’s responsibilities?

A legal guardian takes over the roles you would play as a parent. These include: 

• Day-to-day care of the surviving children until they reach adulthood
• Providing a safe place for them to live
• Ensuring they get an education 
• Being responsible for their diet and health
• Making any decisions about their education, upbringing, health and welfare.

What rights does a legal guardian have?

It is vital to ensure that the person you wish to appoint as a guardian is happy to take on the role, as they do have the right to refuse. 

Obviously, it’s a big ask emotionally and financially to bring up a child; but there is financial support available, subject to eligibility. You can see details of the UK Government Guardian’s Allowance here.

How to choose legal guardians for your Will

The two most important factors to consider when choosing a guardian for your children are whether they can carry out all the responsibilities required of them and if they will be happy to do so. 

You might be in the lucky position of having a few people who you could appoint. These questions may help you decide between them: 

• Are they over the age of 18 and mentally, physically and financially capable of caring for your children?
• Do they already have a good relationship with your children?
• Would they be willing and able to care for your children on a long-term basis?
• Do they already have or are planning to have children of their own? How would this affect matters?
• Are their beliefs and views similar to yours? 
• Do they live nearby? Could your children still attend the same school, enjoy their favourite sports and hobbies, and still see friends and family?

On making your decision, please talk things over with your proposed guardian(s) before including them in your Will.

Who can be a legal guardian?

Anyone who doesn’t already have parental responsibility for your children can be appointed as a legal guardian. This could be your parents, siblings or friends.

If your partner doesn’t already have parental responsibility, they can be named as guardian. However, you don’t need to appoint them as a legal guardian if they are named on the birth certificate or if you were married when the child was born.

How many guardians should I choose for my children?

The most common guardian appointments are one person, or two if they are a couple. You can appoint more than one guardian, but this could result in a conflict about the child’s upbringing. However, it can be useful to choose an alternative guardian should your intended guardians pass away. 

If you have more than one child, you can appoint different guardians for each of them if desired or required. 

Should I make the guardian a trustee as well?

As the guardian will be looking after your children’s finances until the age of 18, you can appoint them as trustee. To do this, we recommend appointing an additional trustee unrelated to the guardian, to assist with the financial and legal aspects of a trust, and to help avoid any conflicts of interest.

How to appoint a legal guardian in your Will

After your chosen guardians have agreed that they would take on the responsibility of caring for your children, they need to be named as legal guardians in your Will. If you haven’t already made a Will, contact us today to discuss your options. 

The details you’ll need are the full name and email address of each guardian. Alternatively, you can provide their postal address or telephone number. 

Once your Will is finished and checked by our team, it is sent out to you via post for signing and witnessing. Then all you need to do is keep it somewhere safe – we provide a secure Will storage service at ELM Legal Services.

Can I change the guardians appointed in my Will?

It may be necessary to change your appointed guardians. Over time, you might have changed your mind, or it could be because your intended guardian: 

• Passes away  
• Separates or divorces
• Has left the country
• No longer wants to or is capable of taking on the responsibility

There are two ways to change the named guardians. 

• By writing a codicil
• Appointing alternative guardians in your Will to take on the responsibility if your intended guardian dies before you do

How much does it cost to appoint a legal guardian?

If you are appointing a legal guardian as part of your Will, then this will be included in the Will writing fee. If you are changing the guardian in your Will, there may be a fee for the amendment or the codicil. 

Do I need to appoint a guardian for my stepchildren?

Unless you have parental responsibility for your stepchildren, you cannot appoint a guardian for them, and if your partner dies, you won’t automatically have responsibility for them. Your partner would need to appoint you as a guardian in their Will. 

When does guardianship end?

Guardianship ends automatically when: 

• The child reaches the age of 18 
• If the child or sole guardian dies while the child is a minor
• It is ordered to end by the court

How ELM can help 

Our friendly and experienced team is here to answer any questions you may have about appointing guardians, or to help you write your Will. To find out more about your options, call us now on 0117 952 0698 or make a free enquiry and our team will be in touch.