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What Happens to Minor Children When Parents Die Without a Will

Losing a parent is a heart-wrenching experience, and the thought of what happens to minor children when their parents die without a will can be a distressing concern. While no one likes to dwell on such grim scenarios, being informed about the legal process that governs these situations is crucial for ensuring the well-being of […]

Losing a parent is a heart-wrenching experience, and the thought of what happens to minor children when their parents die without a will can be a distressing concern. While no one likes to dwell on such grim scenarios, being informed about the legal process that governs these situations is crucial for ensuring the well-being of your children and peace of mind for you as a parent.

In this comprehensive guide, we will explore the intricate aspects of what transpires when parents pass away without a will, including the legal process, the role of guardianship, and steps you can take to protect your children’s interests.

Understanding Intestate Succession

When a person dies without a valid will in place, their estate is considered intestate. Intestate succession is the legal process that dictates how the deceased’s assets are distributed among surviving heirs, including minor children. The specific rules of intestate succession vary from one jurisdiction to another, so it’s crucial to seek legal counsel for the most accurate and relevant information.

  1. Identifying the Heirs

The first step in the intestate process is to identify the legal heirs of the deceased. 

  1. Appointing an Administrator

In cases of intestacy, the court appoints an administrator to oversee the distribution of assets. This individual, often referred to as the administrator or personal representative, is responsible for managing the deceased’s estate, paying any outstanding debts, and distributing assets according to the laws of intestate succession.

  1. Guardianship of Minor Children

One of the most pressing concerns when parents die without a will is the care and custody of their minor children. The court will determine who will serve as the legal guardian for these children, and this decision is made in the best interest of the child’s welfare.

Factors Considered in Guardianship Determination

The court’s primary concern when appointing a guardian for minor children is the well-being and best interests of the children. Various factors are considered when making this determination:

  1. Preference of the Child: If the child is old enough to express a preference, the court may take their wishes into account, although this may not be the sole determining factor.
  2. Relationship with Potential Guardians: The court will assess the relationship between the child and potential guardians. Relatives, such as grandparents, aunts, uncles, or older siblings, are often favored if they can provide a stable and loving environment.
  3. Financial Stability: The court will evaluate the financial stability and resources of potential guardians to ensure they can adequately provide for the child’s needs.
  4. Physical and Emotional Well-being: The overall physical and emotional health of potential guardians is crucial. The court wants to ensure that the child will have a safe and nurturing home.
  5. Substance Abuse and Criminal History: Any history of substance abuse or criminal activity can impact a potential guardian’s suitability.
  6. Willingness and Availability: The court will consider whether the potential guardian is willing to assume the responsibility and whether they are available to do so.

Temporary Guardianship

In some cases, the court may appoint a temporary guardian while the long-term guardianship arrangement is determined. This temporary guardian ensures the immediate safety and care of the child until a permanent guardian is appointed.

Applying for Guardianship

If you are a close relative or have a legitimate interest in the child’s welfare, you can apply for guardianship. This process typically involves filing a petition with the court, providing necessary documentation, attending hearings, and potentially undergoing a background check and home study.

Ensuring Your Child’s Future: Steps to Take

While it may be challenging to plan for the unthinkable, taking proactive steps can provide peace of mind and ensure your child’s well-being in the event of your untimely passing. Here are some actions you can take:

  1. Create a Will

The most straightforward way to protect your child’s future is to create a will. In your will, you can designate a guardian for your minor children and specify how you want your assets distributed. 

  1. Choose a Guardian Carefully

Selecting a guardian is a critical decision. Take the time to consider potential guardians who share your values and can provide a loving and stable environment for your child. Discuss your choice with them and ensure they are willing to take on this responsibility.

  1. Communicate Your Wishes

While legal documents are essential, open and honest communication with family members is equally important. Ensure that your loved ones are aware of your wishes regarding guardianship, your assets, and any other pertinent matters.

  1. Keep Your Estate Plan Updated

Life circumstances change, and it’s essential to periodically review and update your estate plan to reflect these changes. Births, deaths, marriages, and divorces can all impact your plan.


Planning for the future of your minor children in the event of your untimely passing is a responsible and caring act as a parent. While the legal process of intestate succession and guardianship can be complex, understanding the key factors and taking proactive steps can help ensure that your children are protected and provided for according to your wishes.

At Cherewka Law, we specialize in estate planning, and we understand the unique challenges and emotional complexities that can arise in situations like these. Our experienced attorneys are here to provide compassionate guidance and expert legal support, ensuring that your wishes are upheld, your children’s future is secure, and your family’s best interests are protected. Don’t hesitate to reach out to us for assistance during this critical time. We’re here to help you navigate the legal landscape and provide you with the peace of mind you deserve.

Sep 29, 2023 | Our Blog

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