If you have children, it’s really important that you understand how legal guardianship works in the event that something happens to you while they are still young. I’ve invited Alice Timbrell from Timbrell Law to bust the myths and tell us everything we need to know about legal guardianship and how to protect our children’s inheritance.
Hello! My name is Alice Timbrell. I am a solicitor and I run a specialist estate planning law firm in Gloucestershire. We help families prepare hassle-free wills which protect their children’s future so that they can concentrate on the here and the now.
Today I will be sharing some tips for parents thinking about making a will and explain why I consider it so important. There are multiple reasons for making a will, but for parents specifically, making a will is essential for two reasons:
Firstly, by making a will, you get to choose and appoint legal guardians who will care for your children if you die before they reach the age of 18. Those legal guardians will have the authority to step in to act and make decisions immediately from the date of your death, providing continuity and reassurance for your children.
If you fail to appoint legal guardians for your children, then there will be a period of limbo and uncertainty following your death. It will be left to a judge in the family court to decide who will act as legal guardian, based on the applications they receive.
As a parent, you will want to remove that period of uncertainty for your children and your family. The best way to do that is to appoint legal guardians in your will so that they can act immediately.
Many people wrongly assume that godparents or grandparents will automatically become legal guardians for their children. This is simply not the case. If you want a godparent or grandparent to step into that role, you need to appoint them in your will.
For many parents, choosing a legal guardian is often the hardest part of making a will. For further information on factors to consider when choosing legal guardians, you can access our resource library here.
You can appoint any number of legal guardians, including individuals and couples. You can even appoint replacements to step in if your first choice of legal guardian isn’t able to act. For example, if you have appointed your parents and due to changes in their health, they no longer feel able to take on the responsibility and workload of raising young children, your replacement will step in instead on your death.
It’s also important to appreciate that legal guardianship is not set in stone; it can, and should, evolve with your family. The needs of your children and what they require of a legal guardian will change as they grow older. You can update your will and your guardianship appointments as many times as you like to make sure that you have the right people for the job.
The final point that I wanted to raise on legal guardianship is an important one that is often overlooked. When considering whom to appoint as a legal guardian, it also make sense to consider the financial strain bringing up your children may have on that person and their resources. The additional costs of raising your children may cause financial strain to your legal guardians and this may detrimentally impact your children. You want your children to be supported and to make the transition easy so that they can have the best life possible. With smart will drafting, you can incorporate mechanisms into your will to support the legal guardian financially and as a result improve your children’s upbringing.
Protecting your children’s inheritance
The second reason that parents choose to make wills is to protect their children’s inheritance. There are two opportunities to do that.
Option 1: If you are in a relationship, the starting point for most couples is to gift everything to each other and then to your children on the second death. However, in making your will you can take the time to consider the risk of your partner remarrying after your death or changing their will and how that might impact your children’s inheritance. Fundamentally in these scenarios the real risk is that your children’s inheritance will be watered down, they will receive less than you intended or in the worst-case scenario, nothing at all.
If this is a concern, you can take steps to incorporate trust provisions into your will which make provisions for your partner during their lifetime, while protecting the underlying assets for your children. If your partner remarries or changes their will, then they will not be able to redirect the assets you have ring-fenced as a guaranteed inheritance for your children.
OPTION 2: The other way you can protect your children’s inheritance is to consider the point when your children themselves actually inherit. If you don’t have a will, your children will inherit their share of your estate at the young impressionable age of 18. For most parents this is a concern and they would prefer to utilise their will to defer that inheritance to say 21 or 25. The benefit of this is that it gives your children the opportunity to mature and become financially responsible, so that by the time they reach the age of inheritance, they are able to manage it themselves.
The inheritance will be managed by people you appoint known as trustees. The trustees will be able to use the money to pay for your children’s education, maintaining hobbies and interests, school trips, celebrating significant milestones and helping to buy a first home or a car. The money is available to support your children but will be managed by the trustees.
When protecting your family, the most important conversations are often the most difficult. If you would like to learn more about making a Will or have any questions, please let me know on [email protected] or 01242 420744.