“My husband and I are interested in creating a will. Our primary reason is to ensure our child’s care and safety. There are blood relatives that we do not feel are suited to take custody of our child. Can your service help us cover this concern in our wills? We need to name a guardian for our children.”
Everybody needs a Will, but there is one group for whom a Last Will and Testament is invaluable – parents of young children. Writing a Will can offer you the peace of mind in knowing that your children will grow up in a loving and safe environment. A Will allows parents to make their own decisions about Guardianship by expressing their preference for who the Guardian for their children should be. A Will also allows parents to explain why their chosen Guardian would be appropriate for their child, and if all else is equal, the family courts will appoint the named Guardian in most circumstances.
What happens if you do not name a guardian for children?
If no Guardian is named, the situation is likely to resolve in one of three ways:
- if no Guardian comes forward, your children could be placed under the protection of social services;
- if several potential Guardians come forward, a messy custody battle could result and the courts will grant custody of the child to the applicant who the judge deems most appropriate directed by the evidence in front of them;
- if a single Guardian comes forward, they will have to apply to the courts for formal custody.
In each of these circumstances, it is the family courts, and not the parents, who ultimately control custody of the children. If several potential Guardians contest custody, the courts are likely to consider several factors, including the potential Guardian’s relationship with the children, and otherwise prioritizing keeping siblings together. Without a Will, blood relations are more likely to be appointed custody than other applicants. In spite of this, don’t assume that your family members will be automatically appointed Guardianship by the courts. Blood relation is only one of several factors that go into the decision-making process.
It is however very difficult for a judge to consider intangible attributes like political or religious views, child raising values, integrity and ambition.
A properly-constructed Will allows you to pre-empt the ambiguity around the custody process in the event of death, and expresses preference for a Guardian that you decide is appropriate, regardless of whether or not they are your relatives. A Will also allows you to create a trust that could be used for some of the costs that a Guardian may face after taking custody for example, for healthcare or education. But it’s worth considering your chosen Guardian’s means to sustain a larger family, and you could of course leave a separate bequest in your Will to your chosen guardian.
What should a parent look for in a suitable Guardian?
Most parents will have several considerations guiding their Guardianship decision.
- Family, financial or life circumstances – perhaps an otherwise suitable friend or relative has unique circumstances or life plans that would make them a less than perfect choice. A family member who plans on retiring young and traveling the world, for example, might not work best for your children. A Guardian’s ability to support additional family members is of course a consideration.
- Distance, values, minimizing transition – it’s natural to want the Guardian of your children to be a good fit, to help children adjust in a critical time. This can range from proximity allowing your children to keep schools, to the parenting style and faith of the potential Guardian. Your child’s existing relationship with their Guardian is also important. Some parents may decide to choose separate Guardians for their children if other circumstances make keeping the children together difficult. A Will empowers you to express this preference.
- Age of the prospective guardian – You don’t know when your guardianship appointment is going to come into effect. When the children are first born, many people consider their own parents to be the most appropriate choice. But they may not be called upon for another 15 years, at which time the 60 year old parents are now 75. It may be difficult for them to manage a couple of teenagers.
- Comfort level of the potential Guardian – Consider how comfortable your named Guardian would be with the responsibility. Although they have preference over other potential Guardians, they are not legally bound to take custody. Talk with them before finalising your Will, and ensure that, in addition to welcoming the responsibility, they understand the needs of your children, especially their education.
Letter of Explanation
The Letter of Explanation, or Child Guardian Letter, can be attached to your Will, and allows you to elaborate on your decision, and could be a valuable consideration for the family courts. It could also defuse tension among prospective Guardians and prevent a costly and no doubt traumatic legal battle. A Letter could demonstrate the nuances of your Guardianship decision to the family courts and gives you a voice in every situation.
When the guardian in your Will is not chosen
You don’t know when your Will is going to come into effect; it could be next week, it could be many years into the future. The guardianship appointment in your Will reflects your first choice at the time of writing. Clearly, over the years, circumstances change, and even though you have named your preference in your Last Will and Testament, a judge may consider your choice to be unfit to serve as guardian. For example, if they were serving time in prison, or they were struggling with mental health or addiction issues.
The naming of a guardian in your Will assists the judge in making an appointment, but it is not a legally binding appointment. However, all things being equal, the person named in your Will would be appointed by the judge.
Revising your Will
We know that the vast majority of people do not have a Last Will and Testament in place because the process is traditionally inconvenient and expensive. When people do make a decision to write their Will, they try to do it as a “once in a lifetime” activity. But there are phases in your life that see many significant changes.
At the point of your life when you get married, buy a house, and have young children you need a Will. But it is a mistake to wait until there are no foreseeable changes.
Many will writers try to work around this problem by “future-proofing” your Will. By including “all future children” as beneficiaries, or even grandchildren when they are years away from being born.
But this creates an incomplete Will that doesn’t include important provisions for a guardian and trusts for young children.
We recommend that you write your Will today, and using LegalWills.co.uk you can change it whenever you need to. Simply by logging into your account and updating your information. Whenever, you make a change to your Will, just download and print it, and then sign it in the presence of two witnesses to have a complete, up-to-date Last Will and Testament.
By revising your Will, you can always have a say as to the best Guardian for your children. LegalWills.co.uk is the most affordable and convenient way to create and consistently update your Last Will and Testament, without the bother of costly appointments.
Tim Hewson is one of the founders of LegalWills.co.uk.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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