What Happens to Children if Parents Die Without a Will?
Generally, when a parent dies, the surviving parent becomes the natural tutor of the children. When both parents die, things become more complicated. Parents can specify in their wills as to whom they would like to be appointed as the tutor of their children. In the absence of a will, the court will appoint a tutor based on the following preferences:
1) Qualified ascendants of the child. Ascendants are grandparents, great-grandparents and great-great grandparents.
2) If there are no qualified ascendants, the court considers collaterals of the child. Collaterals are the siblings of the child’s parents, i.e. aunts and uncles. The court only considers collaterals who are within 3 degrees of the child, which means only aunts and uncles; no great-aunts or great-uncles are considered.
3) If the child has no ascendants or collaterals, the court considers the child’s step-parent.
To ensure your children are taken care of in the manner you choose, it is best to discuss tutorship with an attorney and include tutorship instructions in your will.
