The most compelling reason for any parent to have a will is to be able to nominate a guardian for your children in the event of your death. Yet, less than half of all adults have a will, and the number drops even more for parents with young children. This is the one legal document every parent should have. Have you ever thought who would look after your children if you were to die?
Courts usually award custody to the surviving parent, but parents, especially single parents – must consider what will happen if their children are orphaned.
Who will look after them?
If you die without appointing a guardian, and there is no other parent with parental responsibility, the court will decide who is appointed to look after your children, and this could be a person neither related or known to the child – that’s a scary thought! There is no guarantee that you would have been happy with the court’s decision.
Eliminate this potentially distressing situation and make your ‘guardian’ preference known. Without it, the Court won’t be aware of your wishes, and your dreaded “in-laws” may come in, take your children and raise them in a way you would never have wanted.
Be confident that you have made provision for the care and protection of your children should the unthinkable happen. Besides naming a guardian for your children, you will also need to appoint executors, trusted people who will administer your estate according to the terms of your will.
Make a will
If you die without a will, archaic intestacy rules dictate how your property will be distributed. Most people assume their spouse will inherit the entire estate, even if no will exists. Whilst this is often the case for lower value estates, if the assets of the deceased are larger, then the rules distribute part of an estate to the surviving spouse and divide the rest among the children.
Most people choose to leave all of their assets to their spouse, with their children inheriting any remaining assets after the spouse’s death.
Consider setting up a trust
You should also contemplate establishing a trust for your minor children so that an adult (a trustee) can manage their inheritance until they reach an age to manage their finances for themselves. You may wish to apply certain conditions on when they can access money for themselves.
Why is a Guardian important?
A guardian is a person appointed to look after your child after your death. They remain your child’s guardian until your child reaches the age of eighteen.
How do I appoint a guardian?
The best way to appoint a guardian is under the terms of your will. Your will ensures that your estate passes in accordance with your wishes (for example, to your children).
Who should I appoint as a guardian?
A guardian can be anyone aged eighteen or over whom you trust. This could be a family member or a close friend. Your child may have an existing close relationship with another adult, which could make the choice a little easier.
It is usual for both parents to agree to appoint the same person as a guardian in the event they both pass away.
Care should be taken when appointing more than one guardian to avoid a dispute as to which guardian your child will live with. If you are appointing more than one person, ideally they will live within one household.
What is the role of the guardian?
The role of a guardian is quite similar to that of a parent. The guardian will have a legal duty of care towards your child, being responsible for their personal safety, health, care, education, and upbringing. Typically, guardians will also liaise with the trustees of any trust that you create in your wills to hold assets for your children.
The appointment would only take place upon the death of the last surviving parent with parental responsibility.
If a court has made a Child Arrangements Order or makes one at any time, it may be possible for the appointment to take place on your death even where there is a surviving parent with parental responsibility, dependent upon the circumstances. If you have any queries in this respect, we recommend that you speak to your Legal and Medical adviser who can put you in touch with a solicitor with specialist Child Arrangements Order experience.
Should I make the guardians trustees as well?
We recommend that you have separate guardians and trustees. Trustees will be taking care of your children’s finances until they are of an age that they can manage this on their own. It is advisable to appoint trustees who are not related to the guardians, e.g. a solicitor or accountant. Doing so will help to provide objectivity and guard against conflicts of interest. Separation of the roles of trustees and guardians allows the guardian to look after your children without the burden of also handling the financial and legal aspects of a trust.
If you haven’t done so already I truly recommend making a will and nominating a guardian for your children – so you can rest in peace!
Have you made a will and nominated a guardian for your children? Let us know by adding a comment below.
This article was written by Matt Wistow, Client Relationship and Business Development Director, Talbots for law for life.