Who Will Take Care of My Kids If Die?

If you’ve taken time to plan your estate, you’ve most likely set up a guardian for your minor children who will automatically gain custody of your children if you were to pass away. But creating a will and estate planning isn’t something that is on the forefront of most people’s minds, and, unfortunately, many parents have unexpectedly passed away with no legally binding plan in place for their children. So who will take care of your kids if you die without a will?

State governments have foster care systems ready in the event that this occurs. It’s a necessary system for lots of reasons, but if you’re like most people, you won’t want your child being taken into state custody and away from people who love them.

It might not seem likely to happen to your family, but it can and does happen all too often. Here are some facts about foster care for you as a parent to think about: 


More than 400,000 kids per year are placed in foster care nationwide.

Many have been abused, abandoned or neglected, but some are placed there because their parents never made a plan for them.

Without legal instructions as to their care, Child Protective Services are called in when children are left as orphans. They’ll take possession of your kids and someone in your family will have to petition to be appointed their official guardian.

If no claim is made, or the courts deem that none of the petitioners are qualified, your children can be put into the foster care system, where they can remain until they become of legal age. 

In Virginia, that age is 21.

Startling Statistics of Children in Foster Care

According to the Virginia Department of Social Services, dozens of children each year enter the foster care system in Virginia because their mother, father or both died without leaving a will.

Without notification of your wishes as to their care, your children could be put into the care of the courts.


See national statistics on the rising number of children in foster care published by the Children’s Bureau, part of the U.S. Department of Health & Human Services.

As statistics show, kids raised in the foster care system do not fare as well as those cared for in their own families. We see lower rates of graduation and increased substance abuse rates among those who are currently in or have gone through foster care. We’ve also seen higher rates of incarceration and shorter life expectancy for these children.

Some of the statistics provided by the Foster Club include:


20% will be homeless after the age of 18.


Fewer than 3% earn a college degree.


71% of women who age out of foster care will become pregnant by age 21.


25% of kids in foster care will experience PTSD.


There are more than 3.3 million reports of violence against children in foster care.

There are those lucky children who get adopted by loving families, but that is most likely to occur when the child is under the age of five. The rate of adoption for older children from foster care drops off dramatically.

According to adoptuskids.org,

There are approximately 5,000 children in foster care in Virginia. Of these children, 1,700 have the goal of adoption, and more than 600 are waiting for adoptive families.

The site goes on to report that these children come from all backgrounds: both cultural and socio-economic, and are generally 5-14 years in age. They may also be in foster care with siblings.

Another report by the Children’s Home Society of Virginia states that Virginia is ranked 49th out of 50 in the states at which kids age out of the foster care system without a permanent family. This occurs because Virginia has fewer resources available through its locally-administered social services system than states with state-administered social services.

Although the system is well-intended, you can see how kids who enter the foster care system because their parents have no will, or for any other reason, will have a lot more challenges ahead of them than kids who are raised within their families.

Keep Your Kids Out of the Foster Care System by Creating a Will

The best way you as a parent can protect your child’s future is to create a will. With an official will, you can: 


Designate first responders to your incapacitating emergency or death. Without it, the police are required to contact Child Protective Services.


Provide instruction to these responders and caregivers.


Define legal long-term care guardians. Without this, every family member has equal priority, with the state making the final guardian decision.


Allocate resources for their long-term care.


Protect their inheritances.

Need to Create a Will and Protect Your Children? Contact Us Today.

Don’t just keep wondering “who will take care of my kids if I die?” Think through the people in your life who you’d be comfortable having custody of your children should you pass away, and then take action to set them up as guardians for your kids. The simple process of creating a will can protect them for life. Talk to us here at The Law Office of Joshua E. Hummer.

As hard as it is to think about; you never know when tragedy may occur. It can happen at any moment, so if you don’t have a will, don’t wait. We’ll walk you through the process and ensure that the proper documents are in place.


Contact our office today to set up your free consultation appointment, and click here to download our free information on all the ways you can protect your kids with estate planning.