For parents, few questions feel more difficult to consider than this one: What would happen to my children if something happened to both of us?
It is an uncomfortable thought—but it is also one of the most important legal and financial questions you can address.
Many parents assume their children would automatically go to a specific family member. Others assume their assets would simply be held for their children until they are older. But under Virginia law, without proper estate planning documents in place, several critical decisions are left to the court.
The court decides who raises your children. The court decides who manages their inheritance. And the law dictates when your children receive full control of their assets.
Understanding how this process works—and how to maintain control over these decisions—is essential to protecting your children’s future.
The Court Will Appoint a Guardian to Raise Your Children
If both parents pass away and there is no surviving legal parent, the court must appoint a guardian.
The guardian is the person responsible for raising your children and making day-to-day decisions about their care, including:
- Where they live
- Where they attend school
- Medical decisions
- Daily upbringing
If you have not formally nominated a guardian in a will, the court must decide who serves in this role.
The judge will consider various factors, including family relationships, the child’s best interests, and the willingness of individuals to serve. But ultimately, the decision is made by the court—not by you.
Even if your family generally agrees on who should care for your children, the court must still formally appoint that person.
This process can introduce uncertainty and delay during an already difficult time.
You Can Nominate a Guardian in Your Will
A properly drafted will allows you to formally nominate the person you want to serve as guardian for your children.
While the court must still approve the appointment, judges give strong weight to the parents’ expressed wishes.
Without a will, you lose the ability to guide that decision.
This is one of the most important reasons parents should have estate planning documents in place.
It ensures that your voice remains part of the process.
The Court Will Also Appoint Someone to Manage Your Children’s Inheritance
In addition to appointing a guardian, the court must appoint someone to manage your children’s financial inheritance.
This person is called a conservator.
The conservator is responsible for managing assets on behalf of your children until they reach legal adulthood.
These responsibilities can include:
- Managing bank accounts and investments
- Paying for education and living expenses
- Protecting and preserving assets
Importantly, the guardian and conservator can be different individuals.
Without proper planning, you do not control who serves in either role.
The court makes those determinations.
Minor Children Cannot Inherit Assets Directly
Under Virginia law, minor children cannot legally own or manage inherited assets directly.
Instead, assets must be managed by a conservator until the child reaches adulthood.
This creates a structured but rigid legal framework.
The conservator must operate under court supervision and may need court approval for certain financial decisions.
This process exists to protect minors—but it also introduces administrative complexity.
Your Children Will Receive Full Control at Age 18
One of the most significant consequences of dying without a trust is that your children typically receive full legal control of their inheritance at age 18.
This applies regardless of the amount.
Whether your child inherits $50,000 or $500,000, the entire balance is transferred outright once they reach legal adulthood.
Most parents would prefer to provide financial support over time rather than transferring everything at once.
Without a trust, the law does not allow for staggered distributions or long-term asset protection.
This default outcome may not align with your intentions.
Probate Will Be Required
When both parents pass away, probate is required to administer the estate.
Probate is the legal process through which assets are identified, debts are paid, and remaining assets are distributed.
The court oversees this process and ensures proper administration.
While probate is a normal legal procedure, it introduces formal steps and administrative requirements.
Proper estate planning can simplify this process and provide clearer direction.
Without Planning, Multiple Court Proceedings May Be Required
If both parents die without proper documents in place, multiple legal processes may occur simultaneously.
These can include:
- Guardian appointment proceedings
- Conservator appointment proceedings
- Probate administration
Each process involves court filings and formal procedures.
While these systems are designed to protect children, they also place important decisions in the hands of the court.
Estate planning allows parents to provide guidance and structure, reducing uncertainty.
Trusts Provide Greater Protection and Control
A revocable living trust allows parents to create a structured plan for managing assets for their children.
With a trust, parents can:
- Choose the person who manages assets
- Specify how funds should be used
- Delay full distribution until a later age
- Provide long-term financial protection
Instead of transferring assets outright at age 18, a trust allows for thoughtful, staged distributions.
This ensures assets are preserved and used responsibly.
Trusts also simplify asset management by allowing a successor trustee to step in immediately, without court involvement.
Estate Planning Ensures Continuity and Stability
Estate planning provides clarity during a time when stability is most important.
By formally documenting your wishes, you ensure that trusted individuals can step into key roles.
This reduces uncertainty and administrative burden.
Most importantly, it allows you to maintain control over decisions that affect your children’s future.
Estate planning ensures those decisions remain guided by your intentions.
The Most Important Takeaway
Virginia law provides a process for protecting children—but without estate planning, critical decisions are made by the court rather than by parents.
By creating a comprehensive estate plan, you ensure:
- The right guardian is nominated
- Assets are managed responsibly
- Financial protection is structured appropriately
- Your wishes guide the process
Estate planning is ultimately about ensuring continuity, protection, and clarity for your children.
It allows you to make intentional decisions now so your family is protected in the future.
Mary Ellen Bowman is the founder and Principal Estate Planning Attorney of The Bowman Firm, a Northern Virginia based firm focused on providing clear, strategic guidance to help families make confident decisions and avoid costly mistakes.