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What Happens to Your Kids If You Both Die? The Answer No One Wants to Hear

7 min11 Jan 2026

What Happens to Your Kids If You Both Die?

It's 3am. You can't sleep. The thought crept in again: What would actually happen to the kids if something happened to both of us?

You're not being morbid. You're being a parent. And the fact that you're reading this means you already know you need to do something about it.

Here's the reality: 62% of parents with children under 18 have no will. Most of them avoid it because thinking about this scenario feels unbearable. But not thinking about it doesn't make it less likely to happen. It just means you've handed the decision to someone who doesn't know your family, your values, or your children's needs.

Table of Contents

What Actually Happens Without a Will {#what-actually-happens-without-a-will}

Let's be direct about this. If both parents die without naming guardians in a will, the following sequence unfolds:

The immediate aftermath

Within hours of both parents dying, if there's no other parent with parental responsibility, your children become the responsibility of the local authority. This isn't theoretical. This is the law.

Social services will attempt to place your children with family members temporarily. But "temporarily" can stretch for months while the court process plays out.

Who makes the decision?

A family court judge. Someone who has never met your children, doesn't know their personalities, their fears, their favourite foods, or which sibling they can't be separated from.

The judge reviews applications from family members who want to take guardianship. They consider:

  • The relationship to the children
  • The applicant's ability to provide care
  • The children's wishes (if old enough)
  • Any existing relationships
  • Practical considerations like housing and finances

What if family members disagree?

This is where it gets painful. Your mother thinks she should raise the children. Your sister disagrees. Your partner's parents think they're the obvious choice.

Without your written wishes, the court becomes a battleground. Family relationships fracture. Legal fees mount. And your children are caught in the middle, already grieving, now watching their family fight over them.

The court case can take 6-12 months. Sometimes longer if there are disputes.

The Court Process Explained {#the-court-process-explained}

Understanding exactly what happens helps explain why naming guardians yourself is so important.

Step 1: Emergency placement (Day 1-7)

Children are placed with a suitable family member or, if none is immediately available, emergency foster care. The local authority has a legal duty to accommodate children who have no one with parental responsibility.

Step 2: Family group conference (Week 2-4)

Social workers arrange meetings with extended family to identify who might apply for guardianship. This is often the first time difficult family dynamics surface.

Step 3: Court applications (Month 1-3)

Anyone who wants guardianship must apply to the court for a Child Arrangements Order. Each applicant needs legal representation. Each has their own case to make.

Step 4: CAFCASS involvement (Month 2-4)

The Children and Family Court Advisory and Support Service (CAFCASS) interviews family members and, depending on their age, the children themselves. They produce a report recommending what's in the children's best interests.

Step 5: Court hearing and decision (Month 4-12)

The judge reviews all applications, the CAFCASS report, and any other evidence. They make a decision based on the welfare checklist in the Children Act 1989.

The crucial point: Throughout this entire process, your voice is absent. You cannot tell the judge who you trust. You cannot explain why your sister would be better than your mother. You cannot say that under no circumstances should Uncle Dave be involved.

With a will, you can.

Common Misconceptions {#common-misconceptions}

"My parents will obviously get them"

Not necessarily. The court doesn't automatically award guardianship to grandparents. If your partner's parents also want the children, there's a dispute. If grandparents are older and the court has concerns about their ability to manage teenagers, your children might go elsewhere.

"We've told everyone who we want"

Verbal wishes have no legal weight. Your mother knows you wanted your sister to be guardian. Your sister knows too. But your partner's mother disagrees and applies to the court. Without a written, signed will naming guardians, the court decides.

"The godparents will take them"

Godparents have absolutely no legal standing. The title is religious or ceremonial only. Unless you name them as guardians in your will, being a godparent means nothing in a custody dispute.

This catches many parents off guard. You chose godparents carefully, had meaningful conversations with them, and assumed they'd step in. Legally, they're just another family friend unless your will says otherwise.

"We don't have enough money to need a will"

Naming guardians has nothing to do with money. You could have zero assets and still desperately need a will to protect your children. The guardianship clause is about people, not property.

"We can't agree on guardians, so we've done nothing"

This is heartbreakingly common. Partners disagree about who should raise their children, so they avoid the conversation entirely. The result? Neither of their choices will be considered because they never documented any preference.

Even a will that names guardians you don't fully agree on is better than no will at all. You can update it later when you reach consensus.

How to Protect Your Children {#how-to-protect-your-children}

The solution is straightforward. Make a will that names guardians. Here's what you need to decide:

1. Choose your primary guardians

Ask yourself:

  • Who shares your values about raising children?
  • Who has the practical capacity (age, health, finances, space)?
  • Who do your children already have a relationship with?
  • Who actually wants this responsibility?

Have the conversation. Don't surprise someone with this responsibility. Discuss it openly. Make sure they understand what it means and genuinely agree.

2. Choose backup guardians

What if your primary choice can't serve? They might be in the same accident. They might have health problems when the time comes. They might have circumstances that make it impossible.

Name alternates. First choice: your sister. If she can't serve: your best friend. If they can't serve: your brother.

3. Write a letter of wishes

A will names the guardian legally. A letter of wishes explains your thinking. It's not legally binding, but it guides the guardian:

  • Your parenting values and philosophies
  • Religious or cultural considerations
  • Education preferences
  • Relationships you want maintained (grandparents, other family)
  • Any relationships you want limited
  • Practical information about routines, medical needs, allergies

4. Consider the financial side

Guardians raise your children. Trustees manage any money for them. These can be different people. Your fun, loving friend might be the perfect guardian but terrible with money. In that case, appoint a trustee to manage the finances on your children's behalf until they're old enough.

5. Review regularly

Guardians you chose when your children were babies might not be right when they're teenagers. Review your will every few years or after major life changes.

Frequently Asked Questions {#frequently-asked-questions}

Key Takeaways

  • Without a will: A family court judge decides who raises your children, possibly after months of family conflict and legal proceedings
  • Godparents have no legal standing: Unless named in your will, they cannot automatically become guardians
  • The court process is long: 6-12 months of uncertainty for your children during the worst time of their lives
  • You have the power to prevent this: Naming guardians in a will takes less time than watching an episode of television
  • Review regularly: The right guardians now might not be right in five years

Next Steps {#next-steps}

You've read this far because you know you need to act. Here's what to do now:

Today (20 minutes):

  1. Discuss with your partner who you'd want as guardians
  2. Make a shortlist of 2-3 options
  3. Think about backup choices

This week:

  1. Have the conversation with your chosen guardians
  2. Make sure they genuinely agree
  3. Start your will (online services can have you done in 30 minutes)

This month:

  1. Complete and sign your will with proper witnesses
  2. Write your letter of wishes
  3. Store your will safely and tell executors where it is

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Last updated: January 2026. This article is for informational purposes only and does not constitute legal advice. Laws described apply to England and Wales. Scotland and Northern Ireland have different rules regarding guardianship.

Last updated: 11 January 2026