If I die without a valid up to date Will in place - what will happen to my children who are still under the age of 18?
If you leave behind a surviving parent who has parental responsibility i.e.
All birth mothers Fathers married to the mother at the time the child was born Fathers who are not married to the mother but are registered on the child’s birth certificate. The registration or re-registration of which must have taken place on or after 1 December 2003 Fathers who married the Mother after the child was born and subsequently re-registered the birth. Civil partners and partners of mothers registered as the child’s legal parent on the birth certificate. A Father with a responsibility agreement with the Mother A parent with a court issued responsibility order A parent with a child arrangement order in place naming him as the parent with whom the child should reside
That parent will automatically have the right to look after your child if you die before that child’s 18th birthday.
If you are the only parent with legal parental responsibility you can name a guardian for your child, who would be appointed immediately on your death within a correctly drafted, dated, signed and witnessed Will.
That guardian would have priority over any surviving parent without parental responsibility.
However, if your child’s other parent wanted your child to live with them, they could challenge your decision by applying to the court for an order. This means that they would be asking a court to decide that your child should live with them instead of the guardian. The court would have to make the decision based on what would be best for your child.
If you and your child’s other parent both have parental responsibility either parent can appoint a guardian, but the guardian will only be appointed after both parents with parental responsibility have died. If your child does not have a relationship with their other parent, or you think another person would be more suitable to look after your child, you can make your wishes known within a correctly drafted, dated, signed and witnessed Will. The person you name will not automatically be appointed as a guardian because your child’s other parent has parental responsibility, however it may be taken into consideration if a court has to be involved.
Parents with a child arrangements order in place should note that while they can appoint a guardian who will be appointed after their death within a correctly drafted, dated, signed and witnessed Will, their child would indeed live with their guardian rather than their other parent, however they would share parental responsibility. If your child’s other parent subsequently wanted their child to live with them, they could challenge your decision by applying to the court for an order. The court would decide based on what was best for your child.
In the absence of you having a valid Will In place and there being no surviving parent with legal parental responsibility, your child’s welfare will be decided by the local authority and the social services with the courts ultimately deciding where and with whom your child should live.
If this prospect concerns you – ARRANGE A LEGALLY VALID WILL APPOINTING YOUR CHOICE OF GUARDIAN ASAP.