wills and probate

If you were to pass away suddenly, what would happen to your young children? Whilst this is something that no parent wishes to consider the correct preparation can spare your family a lot of time, heartache and expense.

When a Young Parent Dies Without A Will

If a parent dies intestate (without a will) leaving children who are minors, then the children are unable to inherit the deceased parent’s estate until they reach the legal vested age of 18. In this instance a Trust for bereaved minors would need to be created to hold the portion of the child’s inheritance on trust for them until they reached 18. As with any Trust there can be a large amount of administration and legal work involved in their creation. The Trust will also require two Trustees to manage the administration until such time as the Trust is wound down, which is obviously a time-consuming process.

At the age of 18 the Trust fund is released to the child in its entirety. The Trustees are duty bound to release the entirety of the Trust Fund to the child when they reach 18 and there is no way to further control the money.

How Can A Will Protect My Children’s Future

A Will can provide a greater degree of protection for your young family following your death. In a Will you are able to select whatever vested age of inheritance you would like for your children provided it is not below 18, for example the vested age could be set at 25 or 21. By the age of 25 or 21 it is more likely that your child will have a more responsible attitude to their finances and would be capable of using their inheritance more wisely.

There are further options allowing you to keep the money in trust for them for a longer period if that would be more appropriate.

If your children needed some of the money earlier to pay for things such as driving lessons or university fees then a letter of wish can be drafted to sit alongside your Will to cover off the different scenarios and situations whereby you would consent to your children receiving some of the money early for a specific purpose. A letter of wish is not a legally binding document and can be changed at any time without the need to your Will to be altered. The creation of a Will is a way for young parents to safeguard the interests of their family for years to come in a flexible way.

A further key issue that will need to be considered is what happens to your children in the event of something happening to you and the other parent at the same time. In the event of a parent dying then parental responsibility remains with the surviving parent. This may not always be the best-case scenario particularly if you have a fractured relationship with the other parent of your child and have differing parenting techniques. In this circumstance a clause could be inserted into your Will whereby you nominate another person to become the Guardian of your child. You are unable to take away the parental responsibility from the surviving parent, however the Guardian would be on hand to help and assist the surviving parent and ensure ultimately that your children end up being raised in the way that you would like them to be. The Guardian can also be appointed as a Trustee so that they will have control over the funds for the child. This is extremely beneficial in cases where the person with parental responsibility is absent or not financially trustworthy.

If both parents were to die then the care of the children would normally be the responsibility of the grandparents, however, this can sometimes be a problem if the grandparents are very elderly or any other member of the family challenges their parental responsibility. This could even mean that your children are placed under the care of a local authority until such time as parental responsibility is ultimately determined. If you have very elderly parents and it would not be appropriate for you to expect them to take over the care of your young children then you can nominate other family members or friends that would be more suitable in your Will. The guardians are responsible for the welfare of your children until they reach 18 and can be guided by the creation of a letter of wish. This letter would set out how you would like your children to be raised and can cover everything from schooling to piano lessons.

You also have the ability to appoint a guardian as a trustee over the funds that are being held on trust for the benefit of the child/children. This means that even if an ex-partner or spouse has day to day parental responsibility. A trusted person is actually in charge of the money not the ex-partner.

5 Assumptions about Guardianship

People wrongly assume that the people closest to them will be automatic guardians and would just take over their children’s care if they were to die. This is not always the case. Below are a few examples of how important the selection of the right Guardian for your children can be.

X – I am not married to the father of my children but he would automatically get guardianship if I died

If biological parents are not married a father can acquire parental responsibility by being listed on the birth certificate or getting a court order that grants him parental responsibility. He won’t automatically become the legal guardian unless he already has parental responsibility.

X – My mother will have the children- she looks after them most of the time anyway

Unless a person is specified as an appointed guardian in a will or letter or wish this will not automatically happen. In some cases where an appointment is contested the court may have to intervene to draw up an order and formalize the guardianship. There is even a risk that the children may be taken into the care of the local authority while the guardianship is confirmed.

X – My Ex Husband never spends any time with the children and I want to appoint someone else

If you were married to the father of your children when they were born your ex has parental responsibility and will automatically become guardian when you die. You are however able to specify an additional guardian in your will in case your ex is unable or unwilling to act. If your divorce settlement included a residence order you can appoint someone to be a joint guardian with your ex and they would have joint parental responsibility. You can also appoint your executor to act as a trustee of money for your children to ensure that the money is not under your ex’s control and your ex does not benefit financially.

X – I want to choose a different guardian to the one chosen by my husband/wife

If parents appoint separate guardians then both guardians must work together to agree on important decisions, otherwise the court will intervene and decide who gets guardianship.

X – We have godparents already!

While godparents have an important role in the moral guidance of a child’s upbringing they have no legal rights in the event of parental death. If you want your children’s godparents to become legal guardians they must be appointed in a will.

The Else Solicitor’s team understands the difficulties that often arise around making provision for children in Wills.

To discuss how we can help you make a Will that meets your particular requirements, please contact Kathryn Caple or Imogen D’Arcy on 01283 526200 or email kathryn.caple@elselaw.co.uk.

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