One of the main reasons why people make Wills is to provide for their children if they die. It’s not a pleasant thought, but making sure your children are looked after if you die is the major concern for most parents.
Solicitors will want to spend a lot of time advising on the financial and legal aspects of a Will and give you lots of advice about how best to draw it up to financially provide for your children. That can take up most of the content of your Will, but who will actually look after your children and give them a home when you are gone is sometimes an afterthought. We want to guide you through the things that you need to think about and discuss, so that what is important to you gets properly dealt with, not just as that afterthought.
It is very sensible if you have young children to have a Will drawn up and to have a clause or clauses in it which deal with their guardianship. This type of guardianship is known as testamentary guardianship and it’s important to think about it carefully before you even speak to a solicitor. That is so that you can give the solicitor the right instructions to provide for what you want to happen with probably the most important people in your life, your children.
The starting point with this is parental responsibility. This is the legal right to have a say in a child’s life. A mother automatically has parental responsibility. A father does not unless they are married to the mother or listed on the birth certificate (after 1st December 2003).
In the case of unmarried parents this means that the father does not get parental responsibility unless jointly registering the birth with the mother, or reaching a parental responsibility agreement with the mother or via a court order granting parental responsibility.
This has an impact on how things will work if you do not make a Will.
If you don’t express your preferences as to who should look after your children in your Will and there is a dispute about it after your death, a court will first look at who has parental responsibility. It does not automatically follow that parental responsibility determines where a child will live but someone with parental responsibility gets a say.
What all this means in practice is that if, for example, you are in a second relationship and your new partner has become the stepfather to your children, possibly for a long time, they have not automatically acquired parental responsibility. So if you die without making a guardianship provision in your Will the children’s natural father can claim a right to make decisions about them if you were married to him when they were born or he registered the birth with you, because he has parental responsibility.
If you have an ex-partner who has parental responsibility because you were married to him or he registered the birth with you, but you have since fallen out and you want your mother or another relative to look after your children if you die, it does not automatically follow that that will happen. This is because without a Will appointing her as a guardian your mother has no parental responsibility.
To reduce the problems that this can cause it is a very sensible thing to make a Will appointing a guardian or guardians of your choice. Doing so gives them parental responsibility if you die. That does not mean that the children will necessarily get to live with them. But if there is a dispute, for example with an ex-partner, it would make it easier for say, your mother, to apply to the court for an order that the children live with her, if you have appointed her as a guardian in your Will. It will also mean that if she meets the other qualifying criteria she can get legal aid more easily if needed.
The court will not have to follow what you say in your Will but it will attach weight to your wishes. So someone who has made a Will dealing with this will have far more chance of their wishes being respected than someone who has not.
Even if there aren’t the difficulties caused by fractured families, all parents need to think about guardianship in their wills. In many instances if you died your surviving partner will bring up the children, presumably following the way that you did together and there is no issue. But what if you died together in a car crash? Who then would look after the children and how?
You need to think about that and appoint guardians in your Will. You should discuss it with the proposed guardians before you name them. Check that they are happy with being guardians and are able to accept the responsibility. Discuss how you would want the children bought up. Do the guardians agree with that? Will they do what you want? Are they able to?
You also need to think about how you are going to ensure that they have the finances to bring up your children. This article does not cover the financial arrangements in a Will but you should make sure that whatever you are doing with your money and assets the Will fits in with what you want from the guardians and that it helps them achieve that. You may not want, for example, to leave half your estate to a charity if that won’t leave enough for the guardians to bring up your children. If you consult a solicitor to advise you on drawing up the Will they can help you do this, without giving your estate outright to the guardians.
You also need to think about whether the proposed guardians are physically up to looking after the children. It is often tempting to name grandparents as guardians. But what if you died some years from now and your children were teenagers? Would grandparents, who might be quite elderly then, be up to, or want to, look after them?
It is also a good idea to review your Will regularly because if you made one years ago, when the children were small, appointing your parents as guardians while they were still middle aged, would it work as well now if the children are 13 or 14 and your parents are elderly? In that case you may want to review the Will and make another one appointing different guardians. Your wealth may also have changed in that time so the financial provision for the children would need checking and possibly updating.
If you appoint guardians you cannot insist on how they bring your children up, which is why it is vital to appoint people that you trust. However you can leave, with the Will, an expression of wishes. That will give guidance to your guardians on, for example, what religion you want the children bought up in, what sort of education, where to live etc. A solicitor will be able to advise you on how to lay this out when they draw up your Will but you need to have thought about it before you speak to the solicitor and have decided what is important to you about your children’s upbringing.
Lots of people don’t get around to making a Will but we hope that we have shown how important it is to do if you have children.
At Stephensons we can guide you through these matters in a plain speaking, helpful, way and prepare a Will for you which helps ensure that your children are looked after. Money and finances are important but it’s about so much more.