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Ensuring Your Children Are Cared for if You Die

By: Guest Article - Updated: 28 Nov 2020 | comments*Discuss
 
A Will Separated Your Children Guardian

The Children Act 1989 defines parental responsibility as all the "rights, duties, powers and responsibility which a parent of a child has in relation to the child and his or her property". It includes, matters such as:

  • Poviding the child with a home
  • Protecting and maintaining the child
  • Being responsible for the child's discipline
  • Dealing with the education of the child
  • Influencing the child's religion
  • Being responsible for the child's health and welfare
  • Looking after the child's finances and property

However, all of these aspects reflect what happens whilst you are alive and are able to care for the child for whom you are responsible. Unpleasant as it may seem, have you stopped to wonder what would happen to your child if you were no longer able to care for and look after them - either because you were too ill or infirm to do so or in the event of your death?

Having a Valid and Current Will

One of the most important steps you can take is making a Will in which you can make provision for any children for whom you are responsible.

If you die without making a Will then you are said to have died intestate and the law will make certain assumptions as to how your estate is to be dealt with. Those assumptions may not accord with your wishes. Under the rules of intestacy there is an order of priority for those who will benefit. This depends upon whether or not you are married, whether you have children and whether your parents or other relatives are still living. In addition, the amount which each person receives will be determined by how much your estate is worth.

If, therefore, you are married or in a civil partnership but want to leave the bulk of your estate to your children you will find that under the laws of intestacy your wishes will be thwarted. The law provides that your spouse/civil partner will receive your personal items (e.g. household items, jewellery etc.), the first £250,000 of your estate and a life interest in half of the remainder of the estate. Your children, on the other hand, will only get half of the remainder of the estate outright (when they reach 18 or marrying before that) and the other half of the remainder after the death of your spouse/civil partner.

If your main asset is the matrimonial home and you do not have much in the way of non-jointly owned property, then your children may not inherit anything. The chances are that if you and your spouse/civil partner are separated, then this will not be what you would want to happen.

Similar problems can occur if you have step children. Even if you are married to the parent of a child, or in a registered civil partnership, unless you have formally adopted them your step children will not benefit under the intestacy. Instead, either your estate will be divided between your spouse/civil partner and any of your own children or, if you have no children of your own, then personal items, the first £450,000 and half of any excess over £450,000 will go to your spouse/civil partner outright but the remainder of will go either to your parents or siblings.

Remarriage

A further complication can arise if you have remarried. Unless you make a will expressly in contemplation of marriage then, as soon as you remarry any Will in force at that date will cease to have effect and, unless you remake the Will, you will be deemed to have died intestate. This means that any children by a former marriage may, depending upon the size of your estate, fail to benefit at all.

This will particularly be the case if your main asset is the matrimonial home and that is owned jointly with your new spouse/partner because the value will not form part of your estate and it is only any other non-joint property that will be taken into account when calculating who gets what upon the intestacy.Making or changing a Will need not be difficult or expensive. Using Your-Will.com from Richard Nelson LLP you can make an online Will for as little as £85 (including VAT) and what is more, you can complete it from the comfort of your own home. They will check through the questions you have provided and will can either be posted or downloaded for you to sign.

Appointing a guardian

Another benefit of making a Will is that you can use it to appoint guardians of your children in the event that anything should happen to you before they reach the age of 18.Whilst there is no need for a married couple to appoint each other to be the guardians of their own children, they already have that responsibility, you might want to appoint a guardian if:
  • You are a single parent
  • You are cohabiting and the children are not the children of your partner
  • You want to make provision for the situation should you and your spouse/partner both die

Bear in mind that if you don't appoint a guardian and your children are left without a parent before they reach the age of 18, then the courts will appoint guardians. However, they will not necessarily be the people whom you would have chosen and there may be a period, pending the appointment, when your children have to be taken into care. By making an appointment in your Will you can take steps to help ensure that the people whom you choose and, possibly just as importantly whom your children would choose, are appointed as guardians.

The role of a guardian is to be responsible for your children in the event that they are orphaned before reaching the age of 18 and to attend to their day to day care, welfare, upbringing and education.

The guardian can also be appointed to act as the trustee for your children and to be responsible for their finances until they reach the age of 18. For example, you may have been able to leave your children a substantial sum under your Will to pay for their upbringing and education which will be held on trust for them until they reach the age of 18. If you do make a guardian a trustee also, then it would be wise to appoint another, independent trustee, for example a solicitor, to prevent problems from arising if there is a disagreement between the child and the guardian as to what the child needs and also to guard against fraud or misappropriation of the funds.

Do bear in mind, however, that if you do not currently have parental responsibility for a child (for example you live with or are married to, or in a civil partnership with, the child's parent but have not adopted or taken on parental responsibility) you cannot appoint a person to be a guardian and, if you wish to continue to be responsible for the child, then you will need to be appointed as the child's guardian in your partner's Will.

Enduring power of attorney

Problems may also arise for your children in the event that you are no longer able to make decisions yourself. This may arise as the result of an illness or from an accident. The best way to make provision is to make what is called a lasting power of attorney which enables you to appoint another person or persons (an attorney) to make decisions on your behalf in the event that you are no longer able to do so because, for example, you have lost the mental capacity to do so.

If you do not have a Lasting Power of Attorney, then the only other way in which your financial affairs can be looked after is if someone close to you applies to the Court of Protection ? a process which can take a significant amount of time and which could potentially costs many hundreds of pounds to pursue. The delays alone could seriously damage how you are looked after and how your financial affairs are managed and you may even find that your affairs are being dealt with by a court official.

It is for these reasons that it is necessary to take steps to ensure that, in the event that this occurs there is someone whom you trust who can take over and manage your finances, wellbeing and other issues on your behalf. A Lasting Power of Attorney is the means by which that can be achieved and allows you to plan in advance:

  • What decisions you want making should you lose capacity to make them yourself
  • By whom and how those decisions are to be made

Provided that they are aged 18 or over and not a bankrupt at the time the form is signed, you can choose almost anyone to act as your attorney.

If you wish, you can appoint more than one person to act at the same time or you can appoint replacement attorneys who will act only if the first appointment does not happen. You can even choose whether multiple attorneys should act together or together and independently and can even specify that they must act together for some decisions but independently for others.

As with our online Will service, you can make a lasting power of attorney online at our Your-will.com web site. This is a straightforward process and can be done from home. Once you have completed the appropriate questionnaire we will check through the documentation and either post the document to you for you to sign or you can download it through the system, print it off yourself and then sign it.

About the Author

This was a guest blog written by Duncan Finlyson, a partner at the specialist will solicitors, Your-Will.com, which is part of Richard Nelson LLP. Using their online software you simply answer a series of questions and leave the rest to them.

Check out the Separated Dads Forum... It's a great resource where you can ask for advice on topics including Child Access, Maintenance, CAFCASS, Fathers Rights, Court, Behaviour or simply to have a chat with other dads.

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[Add a Comment]
Hi there my partner split from his ex partner 3 yrs plus years ago they have a 9yr old daughter, who I love to bits. Unfortunately the “mum” is using anything she possibly can to stop my partner seeing his little girl which we are in the middle of court for however her allegations are disgusting beyond belief. Anyway I digress from my actual question, my partner is concerned that if anything should happen to him ( dies early) would I have any legal rights to his daughter as he worries that only having her mother and partner to go to she would suffer emotionally and mentally if she didn’t have me around. I’ve told him he isn’t going to die anytime soon but it’s a worry for him all the same. Any advice would be welcome
Redfairy - 28-Nov-20 @ 11:28 AM
@Gary. If the mother off my child fell ill with cancer I say suffer you old Harlot .
Chriso - 27-Nov-20 @ 9:02 AM
My son was born in 2004 and I am on the birth certificate so have parental responsibilities. I split from his mum just before his second birthday and have had him every weekend since plus several holidays a year. His mum had another child to a different partner since however they are not together either. My son is approaching his 16th birthday and unfortunately his mum has fallen ill with cancer which is terminal. Where do I stand legally wise in getting custardy of him when she sadly dies. I have heard she wants the kids to stay together so not sure if she has tried somehow to make that happen. Can she make different arrangements for his future without me knowing and if so what can I do about it when found out
Gary - 27-Nov-20 @ 7:56 AM
@coco.thats what i said to child's mother her daughter doesn't deserve to carry my surname. Thats only for the honourable people like my kind would only understand .she need to go under a weak name like watson ha ha h a
Chriso - 25-Nov-20 @ 10:07 PM
I have a 3 year old child. I’m the only parent on his birth certificate. His father’s name isn’t on it so the child has my surname. I will marry to my partner in a few months and I want to know if I will change my surname, my child will take the surname I will have too?
Coco - 25-Nov-20 @ 8:28 PM
I have 2 children by different dads they both see there dads on weekends they live together with me and have a close bond. If I die I know both dad's would want there children. How would I make an agreement to keep the kids together and not be split up?
2children - 29-Oct-20 @ 10:10 PM
my daughter passed away ild iand leaves a 12 year old child iam I next of kin for her there's no body else or would she be taken into care
Jasmine - 6-Aug-20 @ 10:18 AM
Single mum of 1 the child’s dad has her 6hrs on a Sunday. If I was to die how do I legally get my parents (maternal grandparents) to have full guardianship
KD - 21-Apr-20 @ 9:42 AM
Hi. I am divorced from my husband. In the divorce I stayed in our home but my ex has to remain on the mortgage even though he does not contribute to it. It also states in the divorce that I can remove his name from the deeds and change them to my sole name. I have yet to do this. What I'm concerned about is if I died whilst my children are still of school age that my ex will upheave them and move two hours away to where his girlfriend lives that they do not know. My son is autistic and can not handle change. The house will be left to my children. Is there any way I can be sure that my ex does not pull my children away from their current lives, school, friends etc and completely upheave their lives. My son could not deal with this change and he is way closer to me than his dad so he would be suffering enough as it is. I just cant bear the thought of them being torn from everything they know to somewhere they know no one and not even his partner! Obviously I would be happy for him to move into what would be the childrens home to take care of them. Please could someone tell me if I can do anything to ensure my wishes are followed
Lucy - 7-Apr-20 @ 10:10 PM
Hello, I have a very complicated situation. I am considering divorce after discovering adultery from my current husband. We have one child together. He was born in the U.K. but has double nationality since I am American. We have share custody of our child, however if anything happens to me I would want to name my mother as my sons legal guardian. She lives in United States. How can I do this? Please help.
Boymom1 - 29-Mar-20 @ 7:38 PM
Good morning I am wanted to create a will so if I die my child will stay with my husband who is not is biological dad, his biological dad has no contact with my son and is a danger to him. How do i go about doing this?
Gabs - 22-Mar-20 @ 10:01 AM
Hi my sister has a son with her ex ( they was never married ) my nephew stays with his mum but he stays with his dad mist weekend now my sister has take her son and 2 girls from previous relationship to local train station for her ex to pick his son up as he doenst go to the house to pick him up before that my sister had give her eldest 20 a week to take her little brother to his dads for the weekend but now my niece stays with my sister's ex ( she moved in to be near her college placement but since then she had her own baby few days ago )
Mandy - 14-Nov-19 @ 1:27 PM
My best friend passed away leaving her 25 yr old 14yr old and 3 grandchildren the14yr old doesn’t want to stay in family home or with her dad she wants to live with her aunt will that be possible even though there isn’t a spare room the aunt is prepared to make her living room into a bedroom
Sim - 19-Oct-19 @ 10:59 AM
Karl - Your Question:
My ex is in hospital and I have joint parental responsibility my ex is refusing to allow my daughter to stay here I have her stay every other 2 weeks and I don't know who she is staying with whilst my ex is in hospital I am both concerned and do not think it is good if her mother is in hospital surely it should be me who looks after our daughter. There is no court orders in place never been to court about our daughter always been amicable until now

Our Response:
As your ex also has parental responsibility, she is entirely within her rights to appoint who she feels she wishes to look after your child. There is no pre-requisite that your daughter has to come directly to you. She is making decisions regarding what she thinks is in the best interests of your child. Your only option is to discuss this rationally with your ex (if you can), and/or offer help and support.
SeparatedDads - 13-Mar-18 @ 10:41 AM
My ex is in hospital and I have joint parental responsibility my ex is refusing to allow my daughter to stay here I have her stay every other 2 weeks and I don't know who she is staying with whilst my ex is in hospital I am both concerned and do not think it is good if her mother is in hospital surely it should be me who looks after our daughter. There is no court orders in place never been to court about our daughter always been amicable until now
Karl - 12-Mar-18 @ 5:00 PM
Lisa - Your Question:
I am one of five siblings, my eldest sister is 4 years older than I am and has moved out with her boyfriend. My other sister is a year younger than I am and I am 20 and my two younger brothers are under the age of 18. I would really like to know what would happen if my mother in the unlikely event were to die before my brother are aged 18. My father is physically and mentally abusive and we haven't seen him for a couple of years and he does not pay any maintenance. We currently live in rented accommodation where my sister and I contribute. My mother is on benifits also. What my main concern is would my father have custody over them? Would my sisters and I be able to care for them if we were able to afford to? Would my mother have to write in a will or something to say that we coudl possibly provide the care? This is something I will talk to my mother about but would like a little more information

Our Response:
As specified, your mother would have to write this in to her will. It is highly unlikely, the courts would remove your sibling from your care if there was such a provision in your mother's will. I can't really give you any more information, except to say if your father challenged the will, then he would have to take the matter to court. The court would always decide what it deems best for your siblings and consistency, stability and the least amount of disruption is considered most important, meaning it would be unlikely to move your sibling from the home to live with a parent they never see.
SeparatedDads - 22-Sep-17 @ 10:34 AM
I am one of five siblings, my eldest sister is 4 years older than I am and has moved out with her boyfriend. My other sister is a year younger than I am and I am 20 and my two younger brothers are under the age of 18. I would really like to know what would happen if my mother in the unlikely event were to die before my brother are aged 18. My father is physically and mentally abusive and we haven't seen him for a couple of years and he does not pay any maintenance. We currently live in rented accommodation where my sister and I contribute. My mother is on benifits also. What my main concern is would my father have custody over them? Would my sisters and I be able to care for them if we were able to afford to? Would my mother have to write in a will or something to say that we coudl possibly provide the care? This is something I will talk to my mother about but would like a little more information
Lisa - 21-Sep-17 @ 2:23 AM
I have a child with my ex partner..his live in g/f I have all the problems with. We do not get along as she has no children of her own and trys to act like my sons mother infront of me. As a result I do not want to be in contact with her..I dont mind what they do as a family hols etc but as we dont get along I dont want her to attend anything I attend with my child. She has started to attend my boys comp that he has once a mth resulting in a huge row..saying she will come to every event..I am extremly mad..do I have any rights?
Bubbles - 29-Aug-17 @ 11:24 AM
split up with my sons mother 4 years ago. always had access but 12 months ago me and my ex tried being together again. didnt work out. but since we split up. she has denied all acess for over 6 months. not even a phone call. can i do anything . thanks
winto - 15-Mar-17 @ 10:26 AM
Hi, I am married & am living with advanced cancer. Our home is purely in my husband's name, however I obviously at the moment have family rights to the house as I'm married. I've put a lot into the home myself financially, however I'm worried that should anything happen to me & he remarries that half of my contribution would go to his new spouse & not our daughter. Is there anything I can do to make sure my daughter is entitled to something or is looked after/protected financially should I pass on?
Pippin - 6-Jan-17 @ 1:08 AM
My ex-husband passed away when our children were 14 and 15. I had primary and physical custody but my B and I still had a good friendship. He had a home, car , large settlement in which he signed most over to his parents so he didnt spend it foolishly. I dont disagree with that. It was before we met and didnt feel I should be involved but I have no clue if there was a will and my children got nothing. His brother got house, guns (many) car. There is also a riverhouse that Bhad his name on with other siblings. How do I find out if my children should get anything
tessy - 3-Dec-16 @ 9:10 AM
Hi there I was wondering if anyone knows if the passport details of your child/ former husband are needed and will remain valid( as the passport expires) when you make a will. The child lives in anotherEUcountry with his father for the moment. Or are the names sufficient to make a proper will? thank you
Tzortzina - 28-Nov-16 @ 3:54 AM
i have a question just like to know where i stand im with a partner who i live withand who has brought my children up for the last 2 years if anything happens to me could my partner maybe husband by that time take care of my children if my ex husband has parental responsibility i have a daughter too who is not my husbands and do not want them seperated and my daughters dad is deceased
mitch - 25-Nov-16 @ 10:51 PM
If I have 2kids 2 dad's n I due can I do anything to keep them together?
Jax - 19-Nov-16 @ 3:37 AM
I've children with my fiancé, however should anything happen to me before we marry, what would happen to my children. Would they automatically continue to live with him, he has PR.I don't have a WILL as yet. Could i name him to keep our children in a WILL and also could appoint a guardian, should anything happen to us both. Thank you.
Bookworm - 4-Sep-16 @ 8:01 AM
Hi my brothers partner passed away in May thay was still together but didn't live together and thay have 3 children the oldest is 20 the youngest is 3 yrs old and the girl is 12 thay have my brothers second name but is name is not in the birth creticate but it is on the older one don't know why it wasn't on the 2 youngest ones but how does he go about it now he is looking after them and as moved bk in the house to look after the kids but he wants is name in the birth creticates
Loui - 18-Jun-16 @ 11:27 PM
Hi my brother died leaving a fortune I would like to know if my birth father who left my mother when we where baby's he has never had parental responsibility he has never put a drop of food in our mouths he has had no involvement at all for over 45 years he left my mother to bring us up on her own ,he left my mother and married another woman and brought her children up and yes he left her as well he filed for intestate and took all my brothers estate my question is should he be able to claim through intestate if he has never had parental responsibility.
Moggie - 27-May-16 @ 12:11 AM
@Butchery -If it was agreed between your brother's former partner and his ex then there is no breach. Unless the non-biological mother adopted the child then she isn't under a legal obligation. Plus now he is 16, he can make his own preference on who he chooses to live with.
Tim - 6-May-16 @ 12:39 PM
My brother past away twenty months ago he has a son from a previous relationship which his partner died. He was in a relationship and made a will saying that his partner would be guardian of his son if he died she now has given up on his son and he is known living with my sister Has she broken her word I.e. As broken a contract his son is only sixteen
Butchery - 5-May-16 @ 8:21 PM
Me and my ex girlfriend have a son aged 5. I have been in his life regularly and also on his birth certificate. She recently passed away. Now her parents are saying my son is to stay with them. What happens now?
11 - 23-Apr-16 @ 7:55 AM
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