Wills

Many people think that if they do not make a Will the whole of their estate will automatically go to their wife/husband. This is not always the case as in the absence of a Will certain strict rules as to the division of your estate may have to be applied which can result in your wife/husband failing to receive all that you leave. It is especially important for unmarried couples to make Wills, otherwise your partner could lose out.

The best time to make a will is when you are healthy, relaxed and clear sighted. A will is not a death warrant. It is a common sense way of ensuring your family really benefits from everything you leave in the way that you want.

It is important to review your will every couple of years or so to make sure it is up to date, particularly if your circumstances change i.e. you marry, get divorced, you start a family or your estate increases perhaps because of a windfall.

You need a Will to carry out your wishes. We will prepare it for you and will give you all the advice and assistance you need. One of our trained and experienced staff will give you impartial advice on the appointment of your Executors, the costs involved and any tax matters.

Tax advice is well worth taking and sooner rather than later. Action taken early on can often mean more money for your family and less for the taxman.

If you would like us to make a Will for you it would be helpful if we had a meeting to discuss the matter. This would normally be in our offices but if it is difficult for you to leave your home we will come and visit you.

The following information is required in order to make a Will:

1. Your full name.
2. Your permanent address and telephone number.
3. Who are to be your executors? This needs careful thought as the work involved can be both demanding and time consuming. We would be willing to act if you wish.
4. Do you want to make known in your Will any wishes with regard to funeral, burial or cremation?
5. If you have young children, who are to be their guardians in the event of the deaths of both yourself and your spouse/partner?
6. Do you wish to make any small gifts of cash or personal items?
7. Do you wish your spouse/partner to receive the major part if not all of your assets?
8. If the answer to 7 is “no”, who is/are to be the main beneficiary/ies?
9. If you have young children, do you wish them to inherit at 18 or a later age?
10. You ought to think what is to happen to your assets if the whole family is involved in a fatal accident.
11. A note of the full names of your spouse/partner, your children/beneficiaries and your executors.

The first thing to consider is who has parental responsibility.

Parents can often worry about what will happen to their child if they die without making a Will and their child is under the age of 18 years. The first thing to consider is who has parental responsibility.

Who has parental responsibility?

If parents are married at the time their child is born, they will both have parental responsibility. This remains the case if they later separate or divorce. If one parent dies, the surviving parent with parental responsibility will be responsible for looking after the child until they reach the age of 18 years if they die without making a Will.

If parents are unmarried at the time their child is born, whilst a mother automatically has parental responsibility from birth, a father will only automatically have parental responsibility if his name is registered on the birth certificate.

If the father’s name is not registered on the birth certificate, he can obtain parental responsibility by entering into a parental responsibility agreement with the mother or obtaining a parental responsibility agreement from the court.

If parents are unmarried and one parent dies without making a Will, if there is a surviving parent with parental responsibility, they will be responsible for looking after the child until they reach the age of 18 years.

What happens if both parents with parental responsibility die without making a Will and the child is under the age of 18 years?

If no provision has been made in a Will as to who will look after the child in the event of both parents’ deaths, it will be for the Court to decide who is to be appointed guardians for the child. This can be upsetting and unsettling for both the child and other family members at what is already a distressing and difficult time. This additional upset can be avoided by making a Will and appointing guardians to take care of your child in the event of your death. Being able to choose who will take care of your child can help parents feel more at ease about their child’s future.

It is however important to note that appointment of a guardian will only take effect if there is no surviving parent with parental responsibility.

What rights and responsibilities will my appointed guardians have?

A guardian appointed in a Will will be given parental responsibility and will have the same rights and responsibilities as the parent who appointed them. This means the guardian will be responsible for making decisions about the child’s welfare, education, and medical treatment. It is therefore crucial to give careful thought to who you will appoint. It is also a good idea to discuss it with those you intend to appoint as guardians to ensure that they are able to take on the responsibility of caring for your child in the event of your death.

However, although the guardian will gain parental responsibility over the child, this does not grant the guardian an automatic right to have the child live with them. An application to the court for a child arrangements order or a special guardianship order is required for the guardian to be legally recognised as the person with who the child lives. The child can however live with the guardian without a court order, but it is prudent to make the application so that the living arrangements are legally recognised.

It is important to note, however, that if there is any disagreement about where the child lives, a court order would be required.

Can I tell my guardians how to bring up my child?

Whilst it is a good idea to give your guardians some flexibility in their role (as your child’s needs may change as they develop and grow), you can give some guidance on how you would like your children to be looked after by providing a letter of wishes. A letter of wishes is not legally binding but it can certainly make it easier for the guardians if they have some guidance from you on key issues such as, the type of education you would like them to receive, food preferences, interests they have, any religious faith and friends and family you would like them to maintain contact with if possible.

I have appointed guardians in my Will, do I need to do anything else?

If you have appointed guardians in your Will, it is wise to review that decision from time to time to ensure those appointed would still be able to take up their role if necessary. Often when parents have very young children, they may appoint grandparents, who at the time of appointment may be relatively young and fit enough to take up the role. However, bringing up a child is a big responsibility and can be both physically and mentally challenging which may become too much for grandparents as they reach later years.

It is also wise to review any letter of wishes at the same time, as your views on how you would like your child brought up may have altered or your child’s interests may have changed.