The importance of your Will – thinking about your minor children

Published by Paris Drew on 10 August 2021

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When we talk about the importance of making a Will we tend to think of the distribution of our assets and how we might mitigate Inheritance Tax. However, your Will is also an opportunity to appoint somebody to look after your minor children.

How does it work?

Your Will can name an individual or couple to be the guardian of any children you have who are under the age of 18 at the time of your death. Crucially, the provision does not come into effect until the death of both parents of the minor child. On the death of one parent, the surviving parent will continue to hold parental responsibility for any minor children.

To “future proof” your Will, it is possible to appoint a substitute guardian who would be appointed if your first choice is unable to take up the role.

What if you have no provision?

If you do not appoint a guardian, or if the appointment fails, it will be down to the court to appoint a guardian. This may not be a person you would have chosen.

Finances

One of the key causes for concern is whether the guardians would receive adequate financial support to look after the children. Your Will can provide a number of options to financially assist your guardians and ensure that your children are provided for until they can inherit your assets.

In cases where the remainder of the assets are left to the children, the assets will be held on trust until the child reaches a certain age, usually 18, 21 or 25. The trustees can release funds from the trust for the care and maintenance of the child until they reach the specified age, for example to pay for  school or university fees, a car, or a trip for your child.

Your Will can also make a financial gift directly to the guardians for their own benefit. Alternatively, it is possible to allow the trustees to loan funds to guardians which might be useful if they require a bigger home to accommodate the children.

Practical issues

  • To avoid complications on the death of both parents, it is advisable for the parents to agree to the same guardian, even in the event of separation or divorce.
  • When deciding on a guardian consider their location, their relationships with your family and friends, and their lifestyle. All of these things will affect where your children would live and who would play a key part in their lives.
  • Marriage (or civil partnership) automatically revokes a Will and therefore any guardianship provisions within the Will would no longer be valid. If you marry or enter a civil partnership after you have executed your Will it is essential to have a new Will drawn up and revisit your guardianship provisions.
  • If you change your mind about your choice of guardian you will need to do this by Codicil or make a new Will.

If you would like to discuss your Will then get in touch with our legal services team.

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