How to name guardians for your children

Lawpack on March 27, 2020

Making a Will is not just about passing on property. If you have children, you can use your Will to ensure that they are looked after by who you wish in the event of your death.

A guardian is someone you appoint to act in your place as a parent. Guardians are given both the responsibility of caring for, and the powers to make decisions about, your children (i.e. parental responsibility). You can appoint a guardian by using Lawpack’s Last Will & Testament Kit.

Guardians are usually appointed to look after children in the event of the parents’ death, but it’s not a requirement of them being a guardian, as their task is to make decisions about where the children live, with whom, and what school they go to, etc.

The guardian is often, but doesn’t have to be, the same person as the executor and trustee of your Will. Their responsibilities are different: an executor deals with, and has responsibility for, the financial arrangements, whereas a guardian makes decisions about the wellbeing of the children.

If the guardian isn’t the same as the executor, they should be able to co-operate with the executor of the Will.

The appointment of a guardian is only effective if both parents (or all persons with parental responsibility) are no longer alive.

If you have minor children, you should name a guardian to care for them in the event of them being left without any parents.

Minor children are under the age of 18 in England, Wales and Northern Ireland, and under the age of 16 under Scottish law.

Since a guardian takes the place of a parent, you should choose someone in your Will who can offer the best care for your children, such as a close relative who is willing to accept the responsibility.

The guardian can be (but need not be) one of your executors.

Always check with your proposed guardian in advance to be certain that they are willing to act as a guardian before making your Will.

There are complications in making a Will which names a guardian if:

  • you were not married to the other parent when the child was born;
  • you and the other parent have already been or are (after making the will) divorced from each other; or
  • a court order already exists, or is made in the future, relating to where the child is to live or to parental responsibility for the child.

In these cases, we advise that you take legal advice.

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How to witness and sign your Will properly

Lawpack on March 27, 2020

Witnesses to Your Will

To make sure that your Will is legally valid, it’s important to ensure that your will is properly witnessed.

When you’re making a Will you need two witnesses who must be over 18 and preferably neither very old nor hard to trace, in case a question should arise later concerning the validity of your Will. A blind person cannot witness a Will

Making a Will Warning:

If a person is inheriting something in your Will (called a ‘beneficiary’), it’s vital that they are not a witness to the same Will. Also, you shouldn’t use someone as a witness to your Will if they are married to a beneficiary of your Will. If either of these people do witness your Will, they will lose the benefit of their gift, but the Will itself will remain legally valid.

An ‘executor’ (someone you have named in the Will to manage your estate) or their spouse can safely act as a witness to your Will – unless they are also a beneficiary, in which case another witness must be found.

Signing Your Will

You must sign your Will in the presence of two witnesses and they must then both sign in your presence and in the presence of each other as witnesses to your signature. Neither you nor any witness to your Will should leave the room until your Will is both signed and witnessed, and you should all see each other sign the Will .

When signing your Will, use your usual signature, write in ink and date your will. Be sure that the witnesses complete their names, addresses and occupations on the Will.

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What are an executor’s duties?

Lawpack on March 27, 2020

When someone dies, many people assume that their ‘next of kin’ will sort out their affairs (called in legal jargon ‘administering the estate’), but this isn’t often the case.

When someone has made a Will and appointed executors in their will, the executors will be responsible for carrying out the deceased’s wishes.

When someone is named the executor of a Will, they are being asked to take responsibility for administering the estate of the person who made the Will, called the testator, upon the testator’s death.

The term ‘estate’ simply refers to all the property a person leaves behind, whether its value be hundreds or millions of pounds.

One person’s assets may include homes, yachts and a Swiss bank account, while another leaves a wedding ring, some changes of clothes and a shoe box full of costume jewellery. Both have left estates to be accounted for and distributed.

What are the duties of an executor?

Duties of an executor involve corresponding with other parties, keeping meticulous records, filling out forms and being answerable to creditors, beneficiaries and the intentions of the deceased, as recorded in the Will.

Executors’ duties include the following:

Administration

  • Taking an inventory of the deceased’s possessions and debts
  • Notifying and corresponding with all relevant organisations to gather together all the assets
  • Paying all bills, debts and charges on the estate
  • Searching for any unclaimed or missing assets
  • Distributing the legacies (whether specific items, cash sums or residue)
  • Preparing and distributing estate accounts to interested parties
  • Distributing the residue of the estate to the beneficiaries
  • Following the testator’s wishes as closely as possible.

Legal

  • Applying for a grant of probate (in England & Wales, and Northern Ireland) or confirmation (in Scotland) to prove that the executors have the authority to deal with the deceased’s assets to those institutions and authorities that hold assets in the deceased’s name
  • Identifying and dealing with any claims against the estate

Tax

  • Completing inheritance tax returns and paying any inheritance tax due
  • Completing any income and capital gains tax returns and paying any outstanding tax

The executors’ aims are to:

  1. Identify the assets of the estate and assess their value at date of death.
  2. Identify the deceased’s debts and pay them.
  3. Distribute the legacies.

Get more detailed information and advice on the duties of executors in Lawpack’s Executor’s Guide.

What happens if more than one executor is appointed?

No matter how many executors are named, for practical purposes it’s usually easier if one of the executors undertakes the administrative tasks on behalf of all the executors.

The executors should meet to discuss the practical side of carrying out their duties, and whatever is agreed should be put in writing and signed by them all.

All the official paperwork may have to be signed by all the executors, even if they agree that one of them is doing the administration.

This isn’t the case in Scotland, however, as the application for confirmation only needs to be signed by one executor.

Can an executor refuse to administer the estate?

Yes. If an executor refuses to take out the grant of probate, any substitute executor named in the Will can step in and apply for the grant of probate or confirmation.

If no executor has been named in the Will or if the executor named cannot or doesn’t wish to act and no substitute executor is named, beneficiaries can apply to administer the estate. Get more information on how to apply for probate and the probate forms you need in Lawpack’s Probate Kit.

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