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Who will look after my children if they are under 18 when I die?

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If you don't have a will in place and something were to happen to you, your children's future is uncertain. The Partner and Head of Private Client at our firm, Andrew Morgan, is here to discuss why it's important that you make sure your wishes are fulfilled even after death, so that your children are taken care of according to how you'd like. In this article, we explain the different circumstances of what might happen if someone passes away without an official document in place.

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

When a surviving parent has parental responsibility and no Child Arrangements Order (CAO) is in place, they become solely responsible for the children upon the passing of the other parent. However, if a CAO was granted during the lifetime of the deceased parent, then this order would transfer to a testamentary Guardian who gains parental responsibility along with any remaining parental responsibility belonging to the surviving parent.

Do you need a court order for the child to legally live with the testamentary guardian?

The above process does not give an automatic entitlement to do so. To receive parental responsibility, it is necessary to obtain a Child Arrangements Order or Special Guardianship Order from the court. Even if there is no legal requirement, it may be necessary to have an agreement with the Court should there arise any dispute over the child's residence.

What is there are no surviving parents or anyone with parental responsibility?

If there are no surviving parents or anyone with parental responsibility at the time of death, then social services must assess where and who would be best suited in caring for them; this could be with family members through a Residence (Live With) Order or Special Guardianship Order.

What is a Testamentary Guardian?

Testamentary guardians are individuals appointed to take legal responsibility for a minor in either a will or an officially documented letter crafted under Section 5 of the Children Act 1989.

And what are their responsibilities?

The guardian's responsibilities include overseeing the child's health, education, financial affairs and more – in essence, they look after them as a parent would.

How does the court appoint a guardian

In cases where no testamentary guardian is present, then an application can be made to court for one to be appointed. Alternatively, they may also pursue a Live with Order in order to obtain parental rights and approval for where the child should live. If desired, guardianship arrangements can also be established through drafting provisions into wills.

Why make a Will?

Having a will is essential for protecting yourself and your family. It allows you to choose who will become the guardian of your children in case of an unexpected event, so as to make sure that their care is secured at all times. It also gives you the power to decide how much your children should inherit from you.

If you have any doubts about this topic, consult our Intestacy Flowchart to find out what happens if you don't make a will. No matter what, it's always best to be prepared!

Solicitors for making a will

At Stephen Rimmer LLP, 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 experienced team by calling 01323 644222 or contacting us for a free initial chat for all new clients.

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