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What would happen to my children if I was to die without a will?

View profile for James Hammersley
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What would happen to my children if I was to die without a will?

What would happen to your children if you were to die without a will? It’s a bleak topic, and probably not something that you want to think about, but something that needs to be considered.

As a parent, you’ll want to make sure that your children will be well looked after and cared for after your death.

In this article, Wills & Tax Partner James Hammersley discusses how you can ensure that this is the case and that your children are taken care of according to your wishes.

What would happen to my children if I was to die without a will?

This depends on the circumstances of the situation. Below I’ve outlined some different scenarios and discussed what would happen:

There’s a surviving parent with parental responsibility and no Child Arrangements Order (CAO)

If there's no CAO (a Residence/Live with Order) that was made to you regarding the children during your lifetime, and there's a surviving parent who has parental responsibility at the time of your passing then this parent would become solely responsible for your child/children.

This is regardless of whether the child sees the parent.

What if there’s a Live with or Residence order in place?

If there was a Live with Order or Residence Order in place granted to you then the appointment of a testamentary Guardian takes effect immediately on death and that guardian gains parental responsibility which could be shared with the surviving parent (as long as they had parental responsibility).

Is a court order necessary?

The above process does not confer an automatic entitlement to have the child live with the testamentary guardian.

An application to court for a Child Arrangements Order or a Special Guardianship Order is required to legally be recognised as the person with whom the child lives.

That is not to say that the child is unable to live with the guardian in the absence of a court order. However, a court order would be necessary if there is a dispute over where the child is to live.

There is no surviving parent/no-one with parental responsibility

If there is no surviving parent/no-one with parental responsibility at the time of your death, then your child would be regarded under the Children Act as a child in need.

Children’s Services (Social Services) will become involved to assess where the child would be best placed (A Relative, Foster Carer or even sometimes in Care).

If there are family members who wishes to care for the child, then they can apply to the court either for a Residence (Live With) Order or a Special Guardianship Order as referred to above.

What is a Testamentary Guardian?

A testamentary guardian is a person who has been appointed to take legal responsibility over a child either in a will or by a document in writing complying with the requirements of Section 5 of the Children Act 1989.

What responsibilities does a testamentary guardian have?

A guardian is responsible for the child’s:

  • Health & wellbeing
  • Schooling
  • Clothing
  • Financial affairs
  • And more

Essentially, the guardian should look after the child as a parent would and supervise them from childhood to adulthood.

How does the court appoint a guardian for your child?

If no guardian was appointed by will or document as above, then an application can be made to the court for someone to be appointed as a guardian.

However, it is more common in these circumstances to apply for a live with order to gain parental responsibility but also approval of where the child should live

But what if you want to choose your child’s guardian? Well this can be achieved in a will…

Why should I get a will?

To choose your child’s guardian

A will allows you explicitly state who you want to be your child’s guardian and avoid any uncertainty in guardian appointment. You can ensure that a certain person gets guardianship (you may already have someone in mind).

There is a possibility that both parents could die at the same or similar time. So, you’ll want to make sure that you appoint a guardian regardless of whether the other parent is alive at the time that you write your will.

If you don’t want the other parent to gain sole parental responsibility, you can state this in your will and recommend a different guardian. This will give weight to anyone who applies to the court for a Child Arrangements as it will be taken into consideration in court proceedings.


You might want to write a will to explicitly state what should happen to your estate after you die. This may include how much your child inherits.

Complete our Intestacy Flowchart to find out what would happen to your estate if you were to die without a will.

Or, read our article which discusses your options for your children’s inherence here.

Or, watch our intestacy video below...

Solicitors for making a will

At Frettens, we can help you create a will which best represents your wishes for your children after your death, including guardianship and inheritance.

You can speak to a member of our bright and experienced team by calling 01202 499255 or by filling out the form at the top of this page.

We offer a free initial chat for all new clients.

Related: Can you write your own Will without a lawyer?

The content of this article, blog or video is not intended as specific legal advice. For tailored assistance, please contact a member of our team.