Who Will Look After Your Children If You Die?

What is a guardian?

A guardian is someone you have named in your Will as the person you would like to be responsible for your children if they are orphaned before reaching the age of 18.
It does help if both parents agree on the chosen guardians, particularly when a relationship has broken down or in a blended family situation, the child’s natural guardian will be there surviving parent, but in the event that both parents have died – talk to one another and appoint an agreed guardian in both of your wills.

How much authority will the guardian have?

The role of a guardian is quite similar to that of a parent.  Your child’s guardian will have a legal duty of care towards your child, being responsible for their personal safety, health, care, education and up-bringing.

How will my chosen guardian financial be able to look after my children?

When we have chosen our guardians, our next thought usually turns to well if my guardians care for my children, how will they be able to afford it, and afford taking on my children as well as their own family?

There are many options available to plan for this in your will. It is for your experienced advisor to discuss these options with you.

1.    You can leave a cash gift to your guardians should they act as guardians to your children. This is an absolute gift to your guardians. Whilst it gives them a cash gift, it does not mean that they must, or indeed will spend the money taking care of your children.

2.    You can leave your estate to your children at a certain age, for example 21. Your trustees (nominated in your will) then hold the estate until your child reaches the age of 21. Under the administrative powers provided to trustees under your will they have the power to release funds for your child’s maintenance, education, or benefit prior to them reaching the age of entitlement. This power may be sufficient, as funds could be appointed out for your children’s benefit but ultimately the guardians benefit indirectly (for example, the purchase of a bigger property).

3.    You can create a trust in your will, for example a discretionary trust, whereby your guardians are potential beneficiaries, as are your children and grandchildren. Your Trustees (you nominate these in your will) hold your estate (the capital and income) within the trust and have discretion to nominate it out to one or more of the potential beneficiaries in whatever shares they like. The Trustees have discretion and so are guided by a letter of wishes left by you. Such letter would be detailed and would express your wish that if the guardians required funds for example to purchase a larger car, a bigger house, or to fill a need for income to supplement their income if they had to give up work to look after your children, then the Trustees could use trust funds and exercise their discretion in favour of the guardians, whilst preserving the majority of trust funds for your children. Should they be a requirement for a large purchase such as a house, then this could be purchased by the trustees and held within the Trust as a capital asset for your children, but allowing the guardians to live there until the children reach 18/21/25 rent free. The guardians would then of course have the option of selling or renting out their own property. This structure provides real flexibility in a difficult situation.

Letter of Wishes

Leave a letter of wishes to guide your guardians as to your wishes for your children.

Guide your Trustees as to expenditure that they could consider making for your children before your children reach the age that they inherit under your will.

What happens if no guardian is appointed?

If you fail to appoint guardians in your Will and your children are orphaned before they reach 18, the courts will appoint guardians instead, but they won't necessarily choose the people that you would have preferred to take care of your children.

If guardians can’t be agreed, or family members challenge someone that has nominated themselves to act as guardian in the absence of your will, this can be a long and drawn out process, at a time that is emotional and scary for any child.

By appointing guardians, you can ensure that your children are looked after by the people that you have chosen as the best people for the job.

Contact us at Your Will Made Easy to have an in-depth conversation about guardianship and your wills. It really will be the best decision you make to get a will in place and have this organised for your children.