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If a person is designated as the custodian in the parents' will(s), then that person is likely to be granted the custody.

If however, there was no will, or no custodian specified in the will, then, then the court can appoint a custodian of its own choice. Usually, any of the relatives - uncles, aunts, grand parents, step parents, and even friends and strangers can apply for the custody. It is the responsibility of the court to choose the custodian.

In case there are no will, or no custodian specified, and no petitions, then the court may put the children in foster care.

This answer is actually independent of the marital status of the parents, and which child is living with whom at the time of the parents' death.

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