What would happen to my children if I died?

Tragedies, whether through natural disasters, serious illness, accidents or attacks can end people's lives prematurely. If you are a parent, you need to consider what the arrangements would be for your children in the event that you suffered an early death.

If you are the only holder of parental responsibility you can appoint a Guardian in your will, and although this can be challenged, it is a firm starting point for those who want to make sure that their children are cared for by the most suitable adults in the event that something happened to them.

Where parental responsibility is shared, you can only make a valid guardianship appointment in your will if you have an order that means the child or children live with you. If this is not the case, you can still set out your wishes and the reasons behind them in your will, but it will not have the same automatic activation, and it's more easily open to challenge.

However, if for any reason you consider a surviving parent unsuitable to care for a child alone – even if they share parental responsibility with you at the moment - it can be prudent to make a record of those concerns.

How does the court decide on Guardianship?

There is no legal presumption that a child must live with one biological parent after the death of the other. In assessing where a child should live, the court considers the welfare of the child above all else. They will consider the respective pros and cons of each available option and decide on which arrangement would best meet the physical and emotional needs of that particular child.

There will be times when it is considered best for a child to be cared for by the surviving parent, and there will be times when other family members, or even close friends, are considered the more suitable option. The wishes and feelings of the child concerned will also be an important consideration, but the weight attached to these views varies, depending on the age and maturity of the child or children concerned.

A common concern parents have is that if anything were to happen to them, their children could be automatically sent to live with a parent who they've had no contact with for many years, and might lose contact with the extended family who have had an important role in their life to date.

For that reason, it's worth remembering that any family members who are emotionally close to a child can apply for an order protecting future contact with the child.

It's always best if you can agree child arrangements in person and in advance, especially when all those involved will be suffering the loss of a close friend or relative. However, there are occasions when orders need to be made by the court to confer legal status and parental responsibility on those who are best suited to caring for the child, which cannot be granted by consent alone. In such circumstances, it is possible for orders to be made by agreement, and without contested hearings.

Make Guardians and Trustees separate

In many cases, parents nominate trusted family members to be their children's guardians in the event of their death. For example, this might commonly involve making a sibling of one parent a Guardian. Naturally, this can be a good arrangement, as children may well be happier with a favourite aunt and uncle as their guardians than with anyone else. However, in addition to guardians, you also need to name Trustees in your will. These will be the people who look after your money and assets for your children until they reach the age of 18, or another age that you specify in your will.

While you may trust your nominated guardians absolutely, it is seldom a good idea to put them in charge of your estate too. That's because even the most decent people may reach a stage where they need money from somewhere to meet urgent financial needs, and the temptation to dip into what may be substantial funds under their control can be too much for many people.

We often recommend that you nominate two unrelated Trustees for your estate, who can keep an eye on each other, and make sure that any funds given to the guardians are used exclusively for the upkeep and wellbeing of your children.

Have a plan, just in case

As hard as it can be, having discussions about what would happen in the event that one or even both parents died, and making your wishes known, should mean there is no conflict if the worst should happen to you. Hopefully, with your wishes having been made clear, everyone involved – from former partners to grandparents – will agree to co-operate in implementing what they know has been deemed to be the best arrangement by you.

The important thing for parents to be assured about is that where children are concerned, courts never impose arbitrary rules about where and with whom a child should live that would not be in the best interests of the child or children.

However, if you have planned ahead and left clear instructions with regard to your views on the matter, there is far more chance that your child will end up in the care of someone you consider suitable in the event that the worst should happen to you.

To discuss plans for the future of your children, including the need to name a Guardian or Guardians in your will, call us on 0330 041 5869 or contact us and we will call you.