Who will look after my child/children if I die without a Will? Who would get legal guardianship?
If you passed away before they reach 18, have you thought about who you would like to look after them, who will assume legal guardianship?
If no one else has parental responsibility for your child and you have not named a guardian within your will, the court will decide who will look after your child upon your death. In some cases, the child could go into care until this has been decided.
For people with younger children, naming someone they trust to become guardian if they die is one of the most important functions of a will. These people will assume “parental responsibility” for the children.
Parental responsibility allows that person to take decisions on behalf of a child for how they will be brought up, their education, medical treatment and where they will live. Having parental responsibility does not, in general, mean that person is financially responsible.
Named guardians will only come into force if there is no surviving parent with parental responsibility. This usually means that if one parent dies but another survives (even separated/divorced) the surviving parent will have parental responsibility.
So what is parental responsibility and when do I have it?
Both parents of the child will have parental responsibility if they were married at the time of birth.
If they were not married at time of birth, the mother will have full parental responsibility but a father will then legally attain parental responsibility if he is named on the childs birth certificate or if the parents marry at any time after the birth.
Any child who has been adopted (ie if a step parent adopts their step child) will ensure the step parent has parental responsibility
What if I haven’t named legal guardianship in my will and there is no one with parental responsibility?
If both parents were to die and you have not appointed anyone as guardian within your will, then the courts would have to take that decision and appoint someone instead.
This may cause a lengthy delay, in which time your child could be taken into the care system (until responsibility is decided) to be looked after and mean that someone you may not have wanted as a guardian to your child will be left in charge.
This can all be avoided by appointing guardians in your will.
Even if you think your estate isn’t worth much asset wise but you have children, it is always worth making a will to ensure you get to choose their guardian.
If you are a parent, one of the most loving things you can do for your children is to make sure they are looked after by people you trust and know, just in case the worst should happen to you.