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When making Wills for parents of children we always suggest they should consider appointing guardians for the children should they die before the children reach 18.
After getting over the depressing thought, clients understandably tend to focus on the children's emotional wellbeing. They will choose guardians who the children already know and like and these will often be friends or family members who have young children of their own. It is also important, though, to consider how things would work in practice.
The role of a guardian is to take important decisions in relation to the children's upbringing, such as those relating to the children's education and medical treatment. It is not necessarily the case that the children will live with the guardians, although more often than not they would. Technically, appointing guardians in a Will is an expression of wishes rather than legally binding because Social Services always have the last say in relation to the care of orphaned children. If circumstances at the time of your death meant that your chosen guardians would be inappropriate Social Services could overrule your wishes, although in the vast majority of cases they would take the view that you, as parents, were best placed to make the judgement and go along with your views. When expressing your views in your Will, however, it is important to think about any problems that might arise. For example:
The minimum age is 18 and parents often specify a later age such as 21 or 25. Until the children reach the relevant age, the estate will be held and managed for them by the trustees named in the Will. Often parents will appoint the same people to be the trustees as they appoint to be the guardians.
Under the general law, money can be used from an estate for the "maintenance, education or benefit" of the children before they reach the specified age and decisions in this regard are taken by the trustees of the Will. Wills also often give the trustees express power to give or lend money to the guardians to help with the children's upbringing. After all, most parents would not expect guardians to bring up their children at their own expense.
It is worth bearing in mind that if the trustees and the guardians are the same people, this can give rise to a conflict of interests.
Our work includes contentious probate matters, which are matters where people have fallen out about Wills or estates. In this case study the parents died leaving two children who were under the age of 18 and the children went to live with the guardians named in the Will, who were also the trustees. The guardians used money from the estate to build an extension to their house on the basis that they needed to do so, so the children could live with them because without the extension their house was too small to accommodate them. The problem was that when the children were older and moved away, the guardians were left at the house that was significantly more valuable because of the extension.
In the end, an agreement was reached on the basis that the children would receive a share of the value of the house in the long run, but only when the guardians decided to sell it in the years to come but it was an example of the problems that can arise. The root cause of a dispute was the fact that the parents had appointed guardians without considering how it would work in practice.
Parents will often spend many hours thinking about how they wish their assets to be dealt with under their Wills. They can agonise for days on end about who should get the grandfather clock and who should get the grand piano. Decisions with regard to who should act as guardians can however be taken in an instant on the basis of gut reactions even though they can be at least important to the children's wellbeing as the financial aspects. The message is that if you have children, you should give proper thought to what would happen to them if you were to die. In doing so, think both about the children's welfare from an emotional point of view but also how it would all work in practice.
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