What happens when you have a child/children under the age of 18 and you pass away?

Who will look after them and will it be a straightforward process?

When a parent appoints a legal guardian for their children, it’s one of the most important decisions they will ever make. But what happens next – particularly when legal guardians need advice or financial support?

At Phillips Law, our Wills, Trusts & Probate and Family Law teams work together to guide families through every step of the process, making sure both the emotional and practical aspects are properly covered.

If you have been named as a legal guardian, or if you are thinking about who you would appoint if something were to happen to you, here’s what you need to know.

Becoming a Legal Guardian

The appointment of guardians is governed by section 5 of the Children Act 1989.

When parents appoint a guardian in their Will, the appointment takes effect only if there is no surviving person with parental responsibility (for example, after the death of both parents). If both parents have parental responsibility and only one dies, the surviving parent will typically retain sole parental responsibility. This stands even if the parent that dies would prefer that their child lived with the person whom they had appointed as a legal guardian.

Once appointed, a guardian has parental responsibility and the legal authority to make all major decisions about the child’s upbringing. This includes education, medical care, and general welfare.

In many cases, no formal court application is needed if the guardian was appointed in a Will. In more complex situations, however, (such as disputes over guardianship, disagreements with other family members, or where the child’s living arrangements need legal confirmation) an application to the Family Court may be required.

Our Family Law team is on hand to guide you through this, offering sensitive, straightforward advice to help protect the child’s best interests.

What happens if I don’t appoint a Legal Guardian for my child/children?

If both parents die without appointing a Legal Guardian, the court will need to determine who will have guardianship of the child/children and this may be someone you would not have chosen. It is therefore important that you appoint a person of your choice under your Will.

Financial Support for Guardians

Raising a child comes with real financial responsibilities, and guardians need to know what support is available.

Guardian’s Allowance: This is a tax-free benefit provided by the government to help with the cost of caring for someone else’s child. Our Family Law team can help you check eligibility and apply.
Child Benefit: Guardians can usually claim Child Benefit for children in their care.
Trusts and Financial Planning: If the deceased parent’s Will sets up a trust, trustees will manage the child’s inheritance. Our Wills, Trusts & Probate team can help guardians work with trustees to ensure the child’s financial needs are met appropriately.
Accessing life insurance or death-in-service benefits: We can work alongside financial advisors and help review any claims on life policies or other financial arrangements that have been put in place and to ensure these are accessed and managed properly.

If You Are a Guardian, Update Your Own Will

If you have been appointed as a legal guardian for a child, it’s vital to review and update your own Will.

You will now have someone else depending on you. You should appoint a replacement guardian to ensure the child’s care is never left uncertain if something happens to you. Our Wills, Trusts & Probate team can help you update your Will promptly and sensibly, so there is always a clear plan in place.

At Phillips Law, we understand that caring for a child after a bereavement is a huge responsibility; not only legally but also practically and emotionally. By bringing together our Wills, Trusts & Probate and Family Law expertise, we offer a complete service designed to protect children and support the guardians who step up for them.

If you would like to speak to one of our specialists, contact us today by emailing in at [email protected] or calling in on 01256 460830.