Will writing for parents with young children

Things you should think about when making a Will with a young family:

1. Who will look after your children?

You can appoint a guardian in your Will. This is a person who will care for your children in the event of your death. The appointment will only take effect if there is no parent with parental responsibility who survives you.

For some there will be an obvious choice of suitable guardian, but for others it will require careful thought and ideally a discussion in advance.

Think about your family and friends. Who could actually take on this responsibility and is it fair to ask them? If you are thinking of your parents, are they age-appropriate to look after young children? Who do you trust enough to raise your children?

You should think about guardians who share similar views and values as you on parenting, religion, beliefs and lifestyle, taking into account their existing relationship with your children. Think about where they would live, where they would go to school and what kind of a lifestyle they would lead. Who else lives with them and can you trust them. Do they have children of their own and are they similar ages to yours?

It is important to note that whilst you can express your wish in your Will as to your choice of guardian, it cannot be legally binding. That person may have died before you or circumstances have changed and it is no longer appropriate for them to act as guardian. They may not want or feel able to act as guardian. The family courts will always have final jurisdiction over this decision but your views as expressed in your Will (and in a statement in support, if necessary) will be carefully considered before an Order is made in the best interests of the child.

2. Who will act as trustee for your children’s money?

If you leave your estate to minor children, your assets (property, savings, investments, personal possessions etc.) will go into a trust for them until they reach the legal age of majority at 18. This is because a minor is deemed not to have the required ‘capacity’ to accept a gift.

If you do not make a Will, the funds or assets due to any minor children will still be held on trust but only until the age of 18 and you will have had no say in who acts as trustee.

In your Will you can decide whom you can trust implicitly to hold and manage the assets for your child’s benefit until they become an adult and appoint them as executors and trustees.

This may be the same person you appoint as their guardian, or if for whatever reason this is not suitable, it could be someone else. You should always have a minimum of two trustees when dealing with the finances for minor children.

Acting as a trustee can be challenging and demanding. It is a big responsibility and it will be important to appoint capable trustees who understand their legal duties and what is expected of them. It is possible to appoint a professional trustee if, for example, your estate is particularly complex or high value or if there is no one else suitable to act but this does have costs associated with it.

If you decide not to appoint the same people as guardian and trustee, you should think of people who will work well together as a team in raising your children and managing their trust fund.

It is sensible to prepare a letter of wishes alongside your Will offering guidance to your guardians and trustees on how you would like your children to be raised and how to manage their trust fund. For example, you could express your wish for the children to remain in their current home if possible, for the trust to be used for private school funding, school trips, university and living expenses. The trustees can help make sure your guardians do not suffer financial hardship as a result of taking on their role.

3. What age would you like your children to inherit?

Your children cannot inherit until the age of 18. You may, however, feel that this is too young and you can include an age contingency in your Will, of perhaps 21 or 25 years. It is important, however, to understand the implications of an age contingency in your Will for tax and trust law so professional advice is essential.

4. Have you considered whether you might have further children in future?

When drafting a will, it is important that you consider if you may have any further children in the future. For example, it is a good idea to leave a gift or share of a residuary estate to ‘my children’ rather than including names if a parent could have more children in the future. This will avoid having to change the Will later.

You should also consider whether you wish to include stepchildren, in which case they must be referred to as such in the Will as they would have no automatic entitlement if the Will simply refers to ‘my children’.

5. What are your funeral wishes?

It can help ease the burden on friends and family members if your Will specifically states your funeral wishes.

6. Have you thought about life insurance, death in service benefits and pensions?

It is important to understand what happens in the event of your death with life insurance, death in service benefits and pensions. You may need to complete forms to nominate your beneficiaries and consider the inheritance tax position on these assets. This has become less straightforward following changes in the last budget, you should take professional advice to ensure you make informed decisions.

If you need legal advice to ensure that your children are protected, speak to a member of the Blake Morgan Succession and Tax team who can help you address these difficult questions.