Recently, the news that Liam Payne did not leave a will received considerable media attention. His estate is reportedly worth £24.28 million and will be distributed according to the intestacy rules which apply when a person does not leave a will. In the case of Liam Payne who was unmarried, his whole estate will pass to his young son Bear. Whilst most of us do not have such valuable estates, this case highlights the importance of making a will if you are a parent with children under 18.
Under the intestacy rules, a child inherits at age 18. By making a will, parents can change this to 21 or 25, or a combination of ages. Funds can be released before the specified age at the discretion of trustees for the child’s education, maintenance and benefit with a good example these days being university fees. Parents can also consider setting up a more long term trust which may be particularly relevant for disabled children.
Making a will also enables parents to choose trustees who will look after the inheritance until the child reaches the appropriate age rather than the intestacy rules dictating who must administer the estate.
However, perhaps the most important part of a will for parents is the appointment of guardians. Parents want to ensure that people they approve of will take care of their children and if both parents die without formally appointing guardians, only the court can appoint a guardian. An informal agreement is not sufficient. Where one parent with parental responsibility has already died it becomes even more crucial for the remaining parent to appoint a guardian in their will.
Appointing a guardian for your children is an extremely important decision and one which can have far reaching effects on their welfare and wellbeing. When you appoint a guardian, you are in essence, choosing someone to “step in” and take care of your children in the event that you are unable to do so. It is therefore vital, when deciding who to appoint that you consider a number of factors including the proposed guardian’s age and health together with their willingness to take on the responsibility. Crucially chose someone who you and your children know and trust and someone who shares your views and beliefs.
Be aware, however, that if the children’s other parent is alive and has parental responsibility, they will retain these rights on your death. Your choice of guardian therefore may not become effective unless both parents with parental responsibility agree or there are specific legal questions that arise.
In the event that both parents with parental responsibility die without appointing guardians – only the court can then appoint a guardian.
Whilst it is not unusual for parents to informally agree with friends or family who may look after the children upon their death, it is important to note that such an arrangement does not make them a legal guardian nor more importantly confer parental responsibility on them which would allow them to make important decisions about the children’s health, education and religion amongst other things.
The appointment of a guardian will take effect on the death of the person who made the appointment, and crucially in the event that all other individuals with parental responsibility for the children have died. Should there be another person with parental responsibility still living, the appointment of the guardian in a will will not automatically take effect and an application to the Court will need to be made.
To avoid uncertainty and to provide stability for your children it is always good practice to include a guardianship clause in your will.
