It may be a difficult and uncomfortable thing to think about but any parent should consider who will look after their children should they pass away whilst their children are still under the age of 18. This can be easily sorted by writing a will which includes the appointment of guardians and your wishes regarding your children's inheritance.
A guardian would have the legal authority to make decisions on behalf of your child with regard to their upbringing, including decisions about where your child will live and where they will attend school. This is known as parental responsibility.
Who can appoint guardians?
Any parent who has parental responsibility can appoint a guardian. A child’s mother automatically has parental responsibility, as do both parents married to each other at the birth of the child. A father has parental responsibility if he is named on the birth certificate, subsequently marries the mother or if he has a parental responsibility agreement or court order.
Who can be appointed as a guardian?
Careful consideration needs to be given as to the choice of guardian. Grandparents, may seem a sensible option, however, may be an unsuitable choice if they’re heading into old age. Your appointed guardian isn’t bound to accept the appointment and talking this through with your appointed guardian in advance could reassure you that they will be willing to take parental responsibility if the worst happens.
Married Couples
It is commonplace for married couples to make mirror Wills, these are virtually identical wills where one person in a couple leaves their estate to the other in the event of their passing away. In the case of mirror Wills, the guardianship clause only comes into effect on the death of the second parent and it ends automatically when the child reaches 18 years of age.
What are Trustees?
Where children are under the age of 18 (or older if specified in the Will), then their inheritance will be held in Trust. Trustees are appointed to look after the children's inheritance until they are old enough to inherit. Where a Trust is created within the Will, it is usual to appoint the same persons as both executors and trustees. The Trustee is not the guardian, although it may be sensible for at least one of the guardians appointed in a will to also be an executor and trustee. It is the trustees of your will who have control over the money and assets not the guardians.
Financial Considerations
If an appointment of guardians is made, doubt may arise during the period of guardianship as to how far the guardians should shoulder the financial burdens of caring for your children. The guardians themselves may sometimes feel reluctant to accept money for this purpose. If a trust is set up for the benefit of minor children, and the testator does not want the guardians to incur financial burdens in the performance of their functions, it may be useful to make the financial position clear within the Will or separate note addressed to the trustees.
Recording your wishes
A letter of wishes (though not binding) could give guidance to your trustees on how they should use money from your estate to benefit your children. You could express a wish for monies to pay for school fees and other educational needs. Similarly, trustees could apply funds from your estate to your guardian to accommodate your children, for example, to buy a larger house or adapt their current house. Otherwise, money will be held on trust for your children upon them attaining the age of 18. You may also consider changing the age at which your children inherit to 21 or 25
What happens if I do not appoint a guardian?
If you do not appoint a guardian to look after your child and no other surviving parent with parental responsibility exists, then the court will decide who to appoint as guardian for your child. This may very well not be someone your child knows or is close to and could lead to disputes amongst your family.
Do I have to include guardians in my Will?
As an alternative to making the appointment of a guardian by Will, it is possible to make an informal appointment by a signed and dated written instrument. However, it is advisable to always record the guardian appointment in your Will rather than in an informal written instrument, because a Will is less likely to be lost or overlooked upon death.
An appointment of a guardian will not be effective unless it is:
made in writing
dated
signed by the person making the appointment
What if I need to change the guardians?
All appointments of guardians can be changed during your lifetime, i.e. you can update your Will to reflect any changes.
Writing your Will and appointing guardians is the only way to have peace of mind that your children have been left in the care of someone you trust and their inheritance will be looked after.
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