As a parent, you don’t want to think about anything happening to you while your children are young. But it’s important that you do consider what would happen to your children if you died. You want to make sure that your children are protected and that your wishes will be carried out. If you don’t have a Will, the intestacy rules apply. But, why leave it to chance? It’s easy to make a Will and you can guarantee peace of mind for your family. Read on for all you need to know about protecting your children after your death.
Appoint a legal guardian
In your Will you can appoint guardians who will look after your children in the unlikely event that both you and the other parent (usually your spouse or partner) die while your children are under 18. 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. Guardianship only happens if all those with parental responsibility have died. If no one is named by the parents, then the local authority will decide who will look after your children. They may appoint immediate family, but not necessarily, and this may not be what you want. Although the courts can make a guardianship order, it can be expensive and upsetting for the family.
Think carefully about who will make the best guardians for your children. The main thing is to act in your children’s best interests. Consider where the potential guardians live, their religious and ethical beliefs, their relationship with your child and whether they want to take on the responsibility of raising a child. Make sure you ask them whether they are willing to be guardians before you nominate them! How old are the potential guardians? If they are older, such as your parents, will they be able to cope with looking after your children until the age of 18. If the potential guardians have children of their own, then where will everyone live? If the guardians live outside the UK there could be issues – do you want your children to have to move countries?
Make sure you appoint more than one guardian, or at least a substitute guardian in case the first one is not willing to act.
To make a valid nomination for a guardian, the requirements are very similar to when you make a Will. The nomination must be in writing and signed in the presence of two witnesses.
Guardianship for a child ends automatically when the child reaches 18.
For further information about naming guardians, see How to name guardians for your children.
Provide for stepchildren
If you have stepchildren, be mindful of making a gift to ‘my children’ as this will not include any stepchildren. You need to explicitly state in your Will if you want your stepchildren to inherit anything. Legally adopted children will be included in any gift to ‘children’. Stepchildren will inherit nothing from you under the intestacy rules.
Rules for trusts, pensions and insurance
Life insurance policies, pension schemes or other assets held in trust won’t pass under your Will. If you do want your children to inherit these, then you need to contact each provider individually and nominate your children as beneficiaries.
What age should your children inherit?
After your death, children will automatically inherit any assets you’ve left them in your Will when they reach 18 (in Scotland, it’s 17). You might not think this is a suitable age for your child to inherit. Children can benefit before this age, but the assets will be held in a trust and managed by a trustee for the child’s benefit. A child could receive an allowance from a cash fund, but will not be able to withdraw money without the trustee’s consent.
You can change the age that your child inherits, you might think 21 or 25 is a more suitable age. Be specific in any Will you write.
Children from a previous relationship
If you’re not married or in a civil partnership with your partner and you have children from a previous relationship, you should consider how you will provide for all the members of your family. In this scenario, if you don’t have a Will, all your assets will be inherited by your children. This means that a new partner will get nothing! Think carefully about whether this is what you want to happen. The best way to avoid this is to make a Will.
If you are married or in a civil partnership with a new partner, but you have children from a previous relationship and you have no Will, on your death your spouse will inherit the first £270,000 from your estate. This may leave your children with little or no inheritance. The best way to avoid this is to make a Will.
Divorced and separated parents
If you’re divorced or separated and you have children, the surviving parent still has parental responsibility, so any guardianship that you nominate will not take effect unless everyone with parental responsibility has died.
If you have children and you die before the age your children can inherit, any assets you wish your children to inherit will be held in trust, so you will need to appoint a trustee in your Will to manage the trust. In Lawpack’s Last Will & Testament Kit the executors are the same people as the trustees. Trustees are different from any guardians you nominate and are not responsible for bringing your children up; instead, they are responsible for managing any trust for your children.
Think about who is the best person to safeguard your children’s financial interests. You can appoint your child’s surviving parent as one of the trustees with one or two further trustees, or substitute trustees in case both parents pass away. Don’t choose only one trustee. What if that person isn’t available to act? There are rules about who would be appointed, but that might not fit with your wishes.
Family and close friends often make good trustees. They can obtain advice from solicitors and accountants, so they don’t need to be professionals themselves. It does help if they’re good with paperwork and are financially aware. It’s also important that they get on with your children and any guardians that you’ve appointed. Guardians ask trustees for money for your children’s needs, and trustees will decide whether to release funds and the amount.
A letter of wishes can give your trustees and guardians an idea of your views about your children’s future welfare and upbringing. It is a private document that should be stored with the Will; however, don’t attach it to your Will in case it risks invalidating the Will. It’s not legally binding on your trustees and guardians, but it could provide them with some guidance. Lawpack’s Last Will & Testament Premium Kit includes a template letter of wishes.
When should the trust make a payout?
It’s useful to give some guidance to your trustees in a separate letter of wishes about how you would like your money to be controlled. Do you want your children to receive everything as soon as they are 18? Would you like to provide an income for them? What about setting aside assets to be used for specific purposes – education, your child’s first home?
Schedule a review
Things change. Make sure you keep your Will up to date. As a benchmark, review it every five years. Specifically consider whether the people you nominated as guardians and trustees for your children are still suitable.
Make a new Will if you marry or enter a civil partnership as your Will is automatically revoked when you marry or enter a civil partnership.
A cost-effective DIY solution: Lawpack’s Last Will & Testament Kit
For nearly 20 years, Lawpack has proved you can write your own Will without it being expensive. Lawpack’s Last Will & Testament Kit gives you the confidence and the tools to follow straightforward steps to make a valid Will without the need for legal advice.
Lawpack’s Last Will & Testament Kit has been approved by a solicitor and will provide you with all the information you need to make a valid Will. There is a step-by-step solicitor-approved Guidance manual on writing a Will and a choice of three ready-to-complete forms for use in England & Wales, Northern Ireland or Scotland.
This DIY Kit is a good option for those who want to write their own Will and need a bit of extra legal guidance, but can’t afford to use a lawyer to help them write their Will.