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Using your will to protect minor children

Many couples with young children wish to make a Will for the prime reason of ensuring that their children are properly cared for. Under the terms of The Guardianship of Minors Act 1971, no one has the automatic rights to guardianship of an orphaned child (even if they are immediate next of kin). Overriding jurisdiction rests with the courts, and an orphaned child may even be taken into care whilst a decision is being made.

The tenure of The Children Act 1989 is that the courts will, wherever possible, take into account the views of the children themselves in this matter, but the appointment of guardians in a parents’ Will is the most solid way of indicating a preferred choice, and it is vital that this issue should be given the fullest consideration where a Will involving minor children is concerned. The major criteria which should be borne in mind whilst choosing guardians are:

  1. They are of sound mind, are not bankrupt and do not have a criminal record
  2. The children already know them and have an existing relationship with them
  3. The children will be able to continue with their existing lifestyle wherever possible (eg religion, education, locality etc)
  4. Unmarried fathers do not have automatic rights to guardianship of their own children should the mother die, making it vital for unmarried couples with children to make a Will protecting the fathers’ rights.

After choosing suitable guardians, the second major consideration when making a Will involving minor children is ensuring satisfactory financial provision for your childrens’ upbringing. Children do not inherit money until they are eighteen, and until then Trustees will administer their estate. In the absence of a Will the courts will decide who administers your childrens’ inheritance until they are old enough, and a court decision may well be contrary to your own views in this matter. It is therefore essential that parents appoint Trustees of their own choosing in their Will, ensuring that the right people look after their childrens’ money.

When appointing Trustees to handle your childrens’ money there are many other points of which you may wish to give specific instructions, none of which would be possible without a Will. A few examples are:

  1. By law children do not inherit money until they are eighteen. However, many parents may well be uncomfortable with the thought of their children inheriting large sums of money at an early age, and may prefer to set up a trust until their children are twenty one (or an age indicated by you in your Will)
  2. You may wish to give specific instructions to your Trustees concerning the release of money from a trust fund to your chosen guardians to ensure that they have adequate funds to finance your childrens’ upbringing, educations etc.
  3. You may have particular requirements such as ensuring that sufficient finds are available for such things as university fees.

Benson Williams Professional Will Writers can advise on your personal circumstances. Contact us today for your free, no-obligation consultation.

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