By Elaine Roche, partner, JMW Solicitors (www.jmw.co.uk)
Parents have a lot to consider when starting a family; from birthing plans to primary school choices, university funds and everything in between. One consideration that is often overlooked is the creation of a will, yet this is arguably one of the most important tasks parents will ever complete and can be a quick process that saves a great deal of time, money and upset in the long run.
It might not be the most uplifting topics of conversation, but parents would be wise to consider their wishes for their children and estate in the event of their death. In the absence of a will (also known as dying ‘intestate’), children under 18 are left without a guardian and social services are obliged to step in – even if close family members remain and are willing to act as guardians. Social services must assess the safety and appropriateness of the options available, and in the interim they may well decide that social care is the most suitable temporary solution for the children.
At the same time, without a will there can be a delay in freeing up the estate that parents leave behind. This means money may be frozen for an indefinite period until a full court process is complete to determine who to grant probate to. Once probate is granted, the estate can be divided and inheritance funds become available to children via the guardians that social services have named, but in some cases this can be more than one year after the death of parents who were intestate. An additional legality that married couples are often unaware of is that, should they both die at exactly the same time such as in a fatal car crash, the youngest person is deemed the ‘survivor’ and their direct relatives are entitled to inherit the entire joint estate.
With a raft of reasons to justify creating a will, how big a commitment is the process? The answer really depends on how much detail parents are looking to include. It is quite possible to create the most basic of wills that simply specifies desired guardians, executors and trustees. This can be done by a solicitor for less than £500 and is perfectly adequate for those keen to get the minimum legal safeguards in place for their children. Likewise, it is possible to make an incredibly detailed will that pinpoints parents’ wishes for their children down to the tiniest minutiae, even implementing behavioural conditions such as ‘I do not want my child to drive a motorcycle’.
Legally, parents can appoint as many guardians as they wish and these individuals do not need to be relatives of the children. The main piece of advice here is to choose guardians that will adopt a similar parenting style and echo the same morals. The majority of parents choose couples to act as joint guardians, but in larger families they might decide to extend the number of guardians accordingly. I am currently working with the parents of five children to set out a will in which the grandparents provide care for the majority of the time, then the extended family will take over during school holidays. This type of detail can be further illustrated in a letter of wishes that accompanies a will, addressing guardians with specific desires. Such documents can be equally useful in cases where parents are unmarried, or in blended families where there are step-children involved, as the guardianship process can become more complex. In the context of wills, the word ‘children’ only legally applies to blood relations, excluding stepchildren and those who are informally adopted. Even those who currently have a will may be wise to undertake a review to ensure anomalies such as this are accounted for.
Drafting a will provides parents with precise control over their wishes, rather than leaving the care of children to chance. It makes things simpler at a difficult time for loved ones, which is something all parents would hope to ensure for their children and relatives.
