Morbid Question: What happens to kids if parents die?

[NotQuiteCockney]

This is an entirely idle question, but I was wondering: what happens if parents die without a will? Do kids automatically go into care? Do they automatically go to the nearest relative, or what? Do the kids get the parents' money? Does it go into trust?

I assume that if you have a will, then kids and money are distributed according to the will, but does the state check that whomever you say will get the kids, is actually able to cope?

[ssd]

This is a question I've thought of but can't face asking!

Will be interested in the replies.

[NotQuiteCockney]

It's a really difficult subject, isn't it.

We really have to sort out a will for this, only we can't work out who to put down, frankly. No members of the family seem appropriate. A few friends with kids seem ok, but we'd have to discuss it with them first, really, which isn't a conversation I'm dying to have.

[Freckle]

Appointing guardians in your will is a way of ensuring that your wishes are known. The guardians, even if they intially agreed, can always decline (e.g. grandparents who feel they are now too old).

If you die without a will, then certain rules kick in. Effectively any money will go to your children, unless anyone else has a claim on the estate (e.g. deceased man's former wife who was receiving maintenance and was dependent on him). If no guardians are appointed, then the State will get involved. In practice, they would prefer the children to go to another family member, but, if there is no one suitable, they will probably be fostered and then put up for adoption.

[NotQuiteCockney]

The state presumably wouldn't give children to family friends, even close ones? What about family in other countries? I guess it depends who's willing to take them?

If the money goes to the kids, if the kids are underage, is it held in trust? Do the guardians get use of the money to raise the kids?

[handlemecarefully]

We've done a will. Personally I think it is imprudent not to.

My Sister and BIL in Australia are the guardians. Whilst it would be uprooting the children from their country and all that is familiar, it really was the only choice because I know that my sister would love them effortlessly.

The solicitor said that we would have to name alternative guardians who would take the children separately until their 'transfer' to Australia could take place. We've put my parents down as the 'interim'. They are too old to be permanent guardians hence my sister being first choice.

[handlemecarefully]

Oh and sadly they weren't the greatest parents...

[NotQuiteCockney]

hmc, it's absolutely imprudent.

However, we don't see any obvious choices for who to give the kids to. My sister has a very different parenting style, and I think her partner wouldn't cope well with boys. DH's sister is just pregnant now, we'll see how she is as a parent, I guess. None of the grandparents are young and active enough.

I do think some of my local friends would be fine (particularly given how unlikely all this is). As would some old friends of ours, with similar-aged boys, who live outside London, and who we get on with very well. If we saw more of them, I'd definately be tempted to set it up with them.

I'd want to be sure that whomever got the boys, had money from us to cover school, university etc. But I guess that's what a will is for ...

[handlemecarefully]

It is really difficult to decide who is best to take your kids - I empathise (we struggled - don't really want to uproot the kids to Oz, but it was the best scenario in the end), but all the more reason to make those tricky decisions now rather than have them go to next of kin by 'default' or have the courts decide.

The friends with 2 sons sound a good bet. Might be worth plucking up the courage and asking the question....

[NotQuiteCockney]

I will, I will ... we just only see them about once a year. I think they're lovely parents, I think the boys would all get on really well. And they do live reasonably near DH's parents, so it's not a dreadful location.

DS1 is 5 months older than her DS1, DS2 is 5 months younger than DS2. So the ages are ideal.

(It would be a bit weird for them, being adopted by them, but only because the mum is Chinese, ethnically. She's Scottish, too. But this is a pretty minor issue, really.)

Oh, and the conversation would be made stranger by the fact I'm pretty sure they wouldn't want us to do the same for them, her parents live with them ... I wouldn't be insulted, but it's just so delicate and weird.

[ellceeell]

We have a reciprocal arrangement with my brother who lives in a lovely part of Scotland. dd1 asked when she was about 8 what would happen to her if mum and dad died. When we explained she was ecstatic at the idea of moving in with them!

[Blackduck]

Tricky one isn't it. I'd say my brother or his sister (but NOT his brother - or more precisely his brother's wife!)

[handlemecarefully]

Absolutely,

But bear in mind that they may actually be quite moved and incredibly flattered to be asked. You will indirectly be paying them a huge compliment...

But I guess your worry is that you don't want them to feel obliged to say yes unless they really are happy to do it.....

[handlemecarefully]

lol ellceeell (blimey, you've got a difficult name to remember) at your dd being over the moon about her living arrangements when you've popped it. Nice to feel needed eh?

But seriously that's great - at least you and her have no worries on that score.

[wordsmith]

I was really surprised to be asked this question when we amended our will after DS1's birth. It was incredibly difficult to think about - I have 2 brothers, neither of whom are partnered or have children, and my parents are too old to look after small children. After much thought and discussion we named as guardians our two best friends who do not have their own children but are simply wonderful with kids and love their many neices and nephews unconditionally, and play a large part in my children's lives too. (They are DS1's godparents). I know they would look after them and love them like their own. But you're right, it is a horrible horrible thing to have to think about, especially if there isn't an 'obvious' family candidiate, and I personally found the whole process very distressing.

[Kelly1978]

I've wondered about this too. My older two are by my exh, who ahs not seent ehm in over a year now. I'm not sure if they would automatcially go to him? I don't think he would be the best parent neither. Ideally, I'd rather all four stayed with my current partner (the twins dad) in the event of my death, or grandparents otherwise. Not sure how much say I would have though.

[wordsmith]

Kelly I think your ExH would automatically be the children's next of kin in the event of your demise.

[bran]

I think it's very important that there is someone nearby to step in and look after the children, even if they are temporary because your choice of guardian is abroad or whatever. You really don't want the kids going into the social services system at all as once they are in everything happens very slowly and they could be in foster care for months which is extremely damaging.

We haven't formally adopted ds yet so we can't update our wills, but our plan is for him to go to dh's brother in Kuala Lumpur, but also have a couple of people line-up here to take him until bil can fly over. With any luck ds will be out of the country before social services even hear about our deaths. I don't think we will bother with a trust as it might be very complicated to administer across countries, anyway we trust bil to look after ds so we would also trust him to look after ds' money.

What a depressing conversation.

[Stargazer]

When DH and I got married we immediately set about getting wills written. Our arrangements are slightly complicated in the DS is DH's step-son, and DD is ours. However, after careful consideration (and disscusion with DS's father) it was agreed that should DH and I die - then both kids will go live with their aunt & uncle and cousins - DS thinks this is a brilliant idea. BIL and SIL have set up a similar arrangment in their wills - it seemed the most sensible thing to do.

It was difficult to think about this at first, but thinking about the even worse difficulties of not making our wishes clear was awful. At the same time of doing our wills we also let our family and friends know that should either of us, or our children die then our organs, etc should be used to help as many people as possible.

[Hulababy]

DH's MN article has some information on what happens to children if you die without making a will, and of the importance of making a will. Get a good, reputable lawyer, preferaby one that specialises in this area, and get a will written up. It is the only way to make sure people know what your wishes are.

[Ladymuck]

I've posted this before, but just in case it is of help:

We also don't have "obvious" family who would take our sons, but we have some friends who have agrred ot be guardians. They live a fair distance away though we do meet up regularly. But we do have an arrangement where each year both parties recommit to the decision, so we have a regular check that neither side has changed their mind. For example we have some other friends who are nearby but we wouldn't want to suddenly land them in the position of having 4 children under 5 (including 2 traumtised ones!). This has worked well for us - we don't feel trapped into a decision, and both couples feel that they could change their decision without causing great offence (inconvenience possibly, but not offence).

[horseshoe]

It's worth noting that if you are not married to your partner, regardless of parental rights...he may not get guardianship and for this reason we decided to make a will saying that my partner would have our DD. We took alot of legal advice on this and was told that without a will anyone with an interest can come forward and request guardianship and then it would have to go to court and the judge will take individual circumstances into account.
We have it written into our will that my sister will take guardianship of our DD should anything happen to me and DP but in order for her agreement to this she also had to take individual legal advice and state that she had done this prior to signing the agreement...

All very tricky but worth it!

[CarolinaMoon]

horseshoe, why would an unmarried father with parental responsibility have any problems looking after the child if the mother died? (genuine question, we're unmarried and always assumed it would only be a problem if both of us died)

[CarolinaMoon]

or do you just mean "parental rights" in a loose, non-legal sense?

[horseshoe]

I thought that as my DD was born in 2003, my partner had automatic parental responsibility and so there would be no question of guardianship. However, I was informed that in fact DP would have to exercise that he was capable of looking after DD alone. IE... able to afford childcare, plus keep a roof over their heads etc...If it was thought that this would not be the case, then the case would be reviewed and should another family member be able to demonstrate better care...it is possible that they could get guardianship. The only thing that ensures DP will definately without question get DD is if we were a) married or b) a will states so.

[CarolinaMoon]

but aren't most people likely to get a visit from Social Services if they can't look after their kids or keep a roof over their heads?

Hope I'm not being hopelessly naive here, but why would they or anyone else get involved if the father is in a position to support the kids himself and has parental responsibility? (Assuming no other relatives want to wrest the kids off him...)