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What Happens to Your Children If You Die Without a Will?

· 19 min

Note: The following scenario is fictional and used for illustration.

Emma and David never thought it would happen to them. At 32 and 34, with two children aged 3 and 5, they kept meaning to write a will. They'd even discussed who would raise their children if something happened - Emma's sister, Rachel, seemed the obvious choice. But they never put it in writing.

When both parents died in a motorway accident in 2023, their children became the responsibility of the court. Rachel assumed she'd be appointed guardian immediately, but David's parents also petitioned the court. What Emma and David thought was an obvious decision became a 9-month legal battle between two families who both loved the children deeply.

During that time, the children lived temporarily with Rachel under an interim arrangement, but the uncertainty was devastating. The legal fees exceeded £15,000. And Rachel's authority as guardian remained in question until the court made its final decision.

59% of UK parents don't have a will or have one that's out of date. Here's exactly what happens to your children if you're among them - and how to protect them in 15 minutes, for £99.99.

Table of Contents

If you die without appointing guardians in your will, your children become wards of the court. This isn't automatic guardianship for grandparents, siblings, or whoever you told about your wishes. It's a formal legal process governed by the Children Act 1989.

Under Section 5 of the Children Act 1989, parents with parental responsibility can appoint guardians in writing. When you don't exercise this right, the court must decide who raises your children based on their assessment of each case. No assumptions. No shortcuts.

According to Family Court Statistics for July to September 2024, care and supervision cases (which include guardianship matters) take an average of 41 weeks from application to final order. That's nearly 10 months of uncertainty while your children wait to find out who will raise them.

During those 41 weeks, your children may live with family members under interim arrangements - but that placement isn't guaranteed to become permanent. If no suitable family or friends are immediately available, social services may place children in temporary foster care while the court process unfolds.

The court's only concern is your child's welfare. They don't know that your sister has been at every birthday party, that your children call your parents every Sunday, or that your best friend promised to raise them like her own. Without your written wishes, the court starts from scratch.

Here's what parental responsibility actually means: the legal right to make decisions about your child's upbringing, education, medical care, and where they live. Mothers automatically have it from birth. Married fathers have it automatically. Unmarried fathers have it only if they're named on the birth certificate (for children born after December 1, 2003) or have obtained it through legal agreement or court order.

If both parents with parental responsibility die without appointing guardians, no one has automatic authority over your children. Not grandparents. Not siblings. Not your unmarried partner who's helped raise them for years.

The Court Decision Process: How Judges Determine Your Children's Guardian

When you haven't appointed guardians, family members who want to raise your children must apply to the family court. Multiple relatives often apply, each believing they're the best choice. The court then has to decide. You can prevent this by appointing backup guardians in your will.

Judges assess applications based on the welfare checklist in the Children Act 1989. They consider: your child's wishes (age-appropriate), their emotional and educational needs, their physical needs, their age, sex, and background, any harm they've suffered or might suffer, and the capability of each proposed guardian.

CAFCASS (Children and Family Court Advisory and Support Service) gets involved. They conduct independent assessments, visiting potential guardians' homes, interviewing family members, and sometimes speaking with the children themselves. They compile reports for the judge - reports about people who may have known your children their entire lives but now must prove their suitability to strangers.

The timeline stretches across months. After someone applies for guardianship, there's a notice period - potentially 3 months for special guardianship orders. First hearings typically occur 4-6 weeks after application. If multiple family members have applied, or if anyone disputes the arrangements, the case moves to dispute resolution appointments and eventually a final hearing.

When Sarah's parents died in 2022, three family members applied to be guardians: her maternal grandmother, her paternal aunt, and her adult half-brother. The court process took 11 months. The family spent over £20,000 in legal fees. Sarah, at 14, had to be interviewed twice about her preferences - a traumatic experience during an already devastating time.

Legal costs escalate quickly in contested guardianship cases. Court application fees start at £263, but solicitor fees reach £15,000 or more when families disagree. These fees come from the estate your children should inherit or from family members' own pockets.

Your children experience all of this during the worst time of their lives. They've lost their parents. Now they're watching their family fight over them in court.

All of this could be avoided with a guardian appointment in your will - a decision that takes 15 minutes and costs £99.99.

What Happens to Children During the Court Process

In the immediate aftermath of parents' deaths, social services conduct an assessment. Their priority is placing children somewhere safe while the legal process unfolds.

Where possible, children are placed with family or friends. But this isn't a permanent arrangement - it's a temporary placement pending the court's decision. Anyone caring for a child for 28 days or more must notify the local authority, triggering formal assessments and monitoring.

Temporary placements create their own trauma. Children may move between relatives as the court process drags on. They might start at one family member's home, only to move to another when the first placement becomes unsustainable or when court proceedings favor a different guardian.

In the worst-case scenario, when no suitable family or friends are immediately available and willing, children may be placed in temporary foster care while the court decides. 83,630 children were in care in England as of March 2024. While most are in care due to abuse or neglect rather than parental death, the system exists for all situations where children lack parental care.

Foster placements themselves vary. Most children go to approved foster families - 67% of children in care live in foster placements. But 41 weeks is a long time for a temporary arrangement.

Think about the practical reality. Your children have just lost both parents. Now they're living somewhere that might not be their permanent home. They don't know if they'll stay at their current school. They don't know if they'll have to leave their friends, their bedroom, their routine. They're in limbo while courts and adults debate their future.

This uncertainty compounds grief in ways that last for years. Children need stability precisely when everything has fallen apart. Instead, without your appointed guardian, they get bureaucracy and waiting.

A simple guardian appointment in your will provides immediate clarity. Your chosen guardian can take responsibility from day one, no court process required (assuming no disputes). Your children go directly to the person you trust most, in the home you've chosen, with as much stability as possible during an impossible time. Include backup guardians for complete protection.

The Unmarried Parents Trap: Why Your Partner Might Not Automatically Become Guardian

If you're unmarried and assume your partner will automatically raise your children if you die, you need to understand parental responsibility law. It's one of the most dangerous assumptions parents make.

Mothers always have parental responsibility from birth. Married fathers have it automatically. But unmarried fathers only have automatic parental responsibility if they're named on the child's birth certificate - and only for children born after December 1, 2003.

This is the law that changed everything. The Adoption and Children Act 2002 came into force on December 1, 2003. For children born before that date, unmarried fathers have no automatic parental responsibility, even if they're on the birth certificate.

If you're an unmarried father not on your child's birth certificate, you have no automatic parental responsibility. No legal rights to make decisions about your child. No automatic guardianship if your partner dies.

James and Sophie lived together for 8 years with two children. James wasn't on either birth certificate - they kept meaning to add him but never got around to it. When Sophie died unexpectedly, James had no automatic right to keep raising his own biological children.

Sophie's parents petitioned for guardianship. James had to apply to the court for a parental responsibility order and fight a legal battle to keep his children. The battle took 7 months and cost £8,000. During that time, James's authority as a parent remained in legal question.

Unmarried fathers without parental responsibility can obtain it through several routes: re-registering the birth with the mother's cooperation, signing a parental responsibility agreement (free, witnessed at a family court), obtaining a court order (£263 application fee), or marrying the child's mother.

But here's the critical point: even if you're an unmarried father with parental responsibility, if your partner appoints a guardian in her will and she has sole parental responsibility, that guardian appointment takes effect when she dies. If you don't have parental responsibility, her appointed guardian becomes your children's legal guardian - not you.

This applies to unmarried partners generally. If you're in a long-term relationship but not married, your partner doesn't automatically have parental responsibility for your children. They have no legal rights if you die, regardless of how long they've helped raise them or how much your children love them.

Fifteen percent of UK children are born to cohabiting unmarried parents. Many of these families assume that their partnership and shared parenting creates legal rights. It doesn't.

Protect your family with two simple actions: ensure both parents are on the birth certificate (or that unmarried fathers have parental responsibility agreements), and appoint guardians in your will. Add backup guardians to ensure complete protection. These steps take minutes but prevent years of legal trauma.

Family Conflict: When Multiple Relatives Want Guardianship

Your family loves your children. Your parents, your siblings, your closest friends - they all want what's best. But when you die without appointing guardians, love isn't enough. The court must choose between people who all have genuine, heartfelt reasons why they should raise your children.

This is when families fracture.

The Williams family tragedy shows what can happen. When both parents died, the maternal grandmother (age 68, retired, deeply bonded with the children) and the paternal aunt (age 35, two children of similar ages, stable family) both petitioned for guardianship.

Both were loving, capable options. The grandmother had cared for the children every week since birth, knew their routines, their fears, their favorite stories. The aunt could provide a home with cousins, active parents, and long-term stability. How do you choose?

The court process lasted 10 months. The family stopped speaking. The children, ages 7 and 9, were asked which relative they preferred - a question no child should face. They felt guilt about "choosing" between beloved family members. They felt responsible for the growing rift.

The court eventually appointed the aunt. The grandmother hasn't seen her grandchildren since. The children lost not just their parents but also their grandmother, fractured by a battle that should never have happened.

Common disputes pit maternal grandparents against paternal grandparents, siblings against parents, or nearby relatives against distant ones. Each side has valid arguments. Grandparents offer wisdom and devoted love but may worry about age and energy. Younger siblings offer longevity and active parenting but may already have full households.

Geography becomes contentious. Should children stay near their current school and friends, even if that means a less financially stable guardian? Or should they move to a wealthier area with better opportunities but leave everything familiar behind?

Cultural or religious differences divide families. One side may prioritize religious upbringing while the other takes a secular approach. Mixed-heritage families may disagree about cultural traditions and identity.

Financial concerns complicate emotions. Some relatives desperately want custody but lack resources for additional children. Others are financially comfortable but work long hours or lack the emotional warmth children need.

Children get caught in the middle. They may feel pressure to express preferences, knowing their words will hurt someone they love. They may feel guilty for wanting to stay with the relative they're currently placed with rather than the one fighting hardest in court.

Court decisions may satisfy no one. Judges do their best with impossible choices, but they're deciding based on reports and hearings, not years of knowing the child. They might choose the most stable option even if the child has a closer bond with someone else. They might prioritize education and opportunity even if the child desperately wants to stay near friends and familiar places.

Your written wishes prevent this. Courts give significant weight to deceased parents' stated preferences when deciding guardianship. If you've appointed a guardian, and that person is suitable and willing, courts typically confirm your choice rather than second-guessing it.

You know your family. You know who would provide the best home for your children. You know which relative has the temperament, values, and circumstances to raise your children the way you'd want. Write it down.

How to Appoint Guardians in Your Will (The Solution)

Appointing guardians is simpler than most parents realize. Under Section 5 of the Children Act 1989, you can appoint guardians for your children (under 18) in any written document that is dated and signed. A will is the best and most common method.

Important note for pet owners: If you have pets as well as children, they need protection too. Unlike children, pets are legally property and cannot be covered by guardian appointments—you'll need specific provisions in your will to ensure they're cared for.

Your guardian appointment must be in writing, signed, and dated. That's it. No solicitor approval required. No court process while you're alive. No complex legal language necessary.

The appointment takes effect immediately when the last surviving parent with parental responsibility dies. If you've appointed a guardian, and they're willing and suitable, they gain parental responsibility automatically. No waiting. No court applications (unless someone disputes your choice).

You can appoint joint guardians - typically a married couple who will raise your children together. You can appoint alternative guardians in case your first choice is unable or unwilling when the time comes. You can appoint different guardians for different children if your family situation requires it.

The critical first step happens before you write anything: approach your potential guardians and confirm they're willing and able. This isn't a decision to surprise someone with. Have the conversation. Explain what you're hoping for. Make sure they understand the responsibility and genuinely want to take it on.

When choosing guardians, consider several factors. Do they share your values and parenting approach? Do they have a strong relationship with your children already? Are they at an appropriate age and in good health to raise children for potentially the next 15-20 years? Do they have a stable home environment?

Think about location. Would you prefer your children stay in their current area, keeping the same school and friends? Or is moving to be with the best possible guardian worth the disruption?

Consider financial stability, though remember this differently than you might expect. Guardians aren't financially responsible for your children from their own funds - your children's inheritance and any life insurance you've arranged supports their care. A guardian with less money but more love and time might be better than a wealthy guardian with little emotional availability.

You can separate the roles of guardian (who raises your children) and trustee (who manages their inheritance). Your sister might be the perfect guardian - warm, nurturing, wonderful with children - but terrible with money. Your financially astute brother might be the perfect trustee - he'll invest wisely and ensure funds are available for education and opportunities - but he's work-obsessed and not suited to daily childcare.

WUHLD's will service lets you appoint guardians, alternative guardians, and trustees separately or together, depending on your family's needs. You can include wishes and guidance for your guardians - not legally binding, but helpful context about your hopes for your children's upbringing.

The process takes 15 minutes. You enter your guardian's details, explain their relationship to your children, and name alternatives if your first choice can't serve.

Frequently Asked Questions

What happens to my children if I die without a will in the UK?

If you die without appointing guardians in a will, your children become the responsibility of the family court under the Children Act 1989. The court must appoint a guardian based on the child's best interests, a process taking an average of 41 weeks. During this time, children may live temporarily with relatives or friends, or in rare cases where no suitable family is available, may be placed in foster care. The court will consider any family members who apply for guardianship and assess each case individually.

Can I choose who looks after my children if I die?

Yes. If you have parental responsibility, you can appoint legal guardians for your children (under 18) in your will. This appointment must be in writing, dated, and signed. Your chosen guardian takes on parental responsibility immediately when the last surviving parent with parental responsibility dies, without requiring court approval (assuming no disputes). This is the only way to ensure your preferred person raises your children rather than leaving the decision to a court.

Who has parental responsibility if parents aren't married?

Mothers automatically have parental responsibility from birth. For unmarried fathers, parental responsibility is automatic only if they're named on the child's birth certificate for births registered after December 1, 2003. Unmarried fathers not on the birth certificate must obtain parental responsibility through re-registering the birth with the mother's cooperation, signing a parental responsibility agreement (free, witnessed at family court), obtaining a court order (£263), or marrying the child's mother.

Can my partner be the guardian if we're not married?

Your unmarried partner can only be appointed guardian if you specify them in your will. They don't automatically have parental responsibility just from living with you and your children, even if you've been together for many years. If your partner is the biological father but not on the birth certificate, they don't automatically become guardian if you die - your will appointment or their parental responsibility status determines this.

Can I stop my ex-partner from getting custody if I die?

No. If your ex-partner has parental responsibility, they automatically become the sole parent if you die, regardless of your will. Your guardian appointment only takes effect if your ex also dies or doesn't have parental responsibility. If you have serious concerns about your ex-partner's ability to safely parent your children (abuse, neglect, substance issues), consult a family law solicitor about legal options, which may include supervised contact or, in extreme cases, removal of parental responsibility.

How much does it cost to appoint a guardian?

Appointing guardians as part of your will costs £99.99 with WUHLD's online service (one-time fee, no subscription). If you use a traditional solicitor, expect to pay £500-£800 for will writing including guardian appointments. There's no separate legal fee just for the guardian appointment itself - it's part of your will. However, if you die without appointing guardians and family members dispute guardianship, court legal fees can exceed £15,000.

What's the difference between a guardian and a trustee?

A guardian is responsible for your child's day-to-day welfare - where they live, their education, medical decisions, and general care. A trustee manages your child's inheritance - the money and assets you leave them - until they reach the age you specify (typically 18). These can be the same person or different people. For example, your sister might be the perfect guardian (loving, great with kids) while your financially-savvy brother is the perfect trustee (manages the inheritance responsibly). WUHLD's will service allows you to appoint guardians and trustees separately or together.

Ready to Create Your Will?

WUHLD makes it simple to create a legally valid will online in just 15 minutes. Our guided process ensures your wishes are properly documented and your loved ones are protected. Start creating your will now — it's quick, affordable, and backed by legal experts.

Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.

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