When both parents pass-away whilst a child is still underage, there is no one with parental responsibility who can take over the role of a parent.
Parental responsibility is a term used to describe the legal rights and responsibilities of a parent, which include housing, protecting and maintaining their child. All mothers and most fathers gain parental responsibility when a child is born. In some situations, such as adoption, parental responsibility will later be transferred to other responsible adults.
If there is no-one with parental responsibility to take care of a child, it will fall on the authorities to choose an appropriate caretaker. You may be surprised to hear that family members are not necessarily the people who end up caring for a child and, although they will try, it is not always possible for the authorities to house siblings together.
By making a valid Will, you can name those that you most trust to take care of your child as legal Guardians in the event of your untimely death. Furthermore, you can specify your wishes in terms of their upbringing to ensure they are cared for in the way you intended.
Nominating guardians can be particularly important in complicated family situations where parents are separated and it may not be appropriate for the other parent to assume care of a child.
It is of course important to discuss your wishes with your preferred Guardians to ensure that they are both willing and able to fulfil this important role.
If you do not have a valid Will in place, the distribution of your assets will be governed by intestacy laws, which may be contrary to your intentions. A valid Will ensures that your assets are distributed in accordance with your wishes.
If you are married or in a civil partnership, the majority of your estate would usually be inherited by your legal partner (this is the case if there are children from the relationship).
If you do not have a legally recognised spouse, your estate would usually be divided equally between your children. However, English law does not allow for assets to be directly inherited by children until they reach the age of 18. A ‘trust’ is therefore imposed when assets are left to minors in your Will. You appoint executors or trustees who are responsible for looking after those assets until each child reaches a nominated age. In the absence of a Will, the law decides who becomes responsible, and again, it may not be the person whom you would personally entrust with such a responsibility.
If you are in the process of separation, you should be aware that your former spouse remains one of your heirs until your relationship has legally ended and could inherit your estate instead of your children. Click here for further information on the importance of updating your will as soon as you decide to separate.
Even after you are divorced, if your ex-partner has parental responsibility, they could be appointed to look after your assets on behalf of the children. Some people will be comfortable with this, others will not.
Wills are not only for those with significant assets, they are a key tool in ensuring your children and their inheritance are protected. It is advisable to use a solicitor to draft or at least check your Will to ensure that it will have the effect that you want. Mistakes can mean that your wishes are not followed.
You can update your Will as often as you want or need to reflect your wishes. To protect your Will from challenges you should always use a professional Will writer to do this. For an initial discussion about your situation, please call 020 7993 2936.
Filed Under: Insight