How Does Having Children Affect Writing A Will?
Starting a family is certainly a life changing event. Children can bring you so much joy and happiness, and can massively enrich our lives.
As parents we tend to spend so much time trying to meet their every need, but often forget to think about what would happen if we weren’t around to love and also support them growing up.
Making a will if you have just started a new family should be something that you give serious consideration to. This is because we want what is best for our children and a will allows you to make decisions even if you are not around.
Appointing Guardians in the Will
If anything happened to you, don’t assume that your children would be bought up by the member of your family or friend who you think would bring them up in a way that you would want.
If you don’t appoint guardians in your will then the first stage will be the intervention of social services who will put your children into temporary care until guardians can be formally appointed.
Social services will make an assessment of who they think should look after your children, and this assessment will go to the courts for a judgement.
The combination of social services and the courts will be making the decision as to who looks after your children, not you. Your children may be lucky if the person who the courts appoint is exactly the same person you would have chosen, but you are relying on luck though.
Having a will allows you to appoint guardians which is legally binding, meaning that you decide, not the courts, who you want to bring your children up.
Just chatting to friends or family about your preferences is not enough to persuade the court who should look after your children until they reach 18.
The courts view could be simply that if you wanted to have a say in who would bring your children up if you were not around to do so, you would have taken the time to have a will drafted for you that appointed guardians for your children.
Choosing a Guardian
Choosing the right person or couple to bring up your children will often be a natural and easy choice to make. It may be brothers or sisters who your children feel close to, or grandparents who are already in place to help you bring up your children.
However, don’t assume that because they feel like the natural choice, they are the best choice.
Bringing up someone else’s children is something that should be thought through very carefully, and it may not be the right decision for the person who you want to appoint.
You will need to take into consideration the age of your children and also the age of your chosen guardian. Appointing your elderly mother as a potential guardian of your 3 year old child may seem like a good idea but it may not be practical, especially if your parents are not in the best of health.
After all, you are expecting them to look after your children until they reach adults at 18, and even after then, the relationship will not change overnight and will gradually change.
We always recommend talking through your guardian choices with your family first, and make sure that you let your chosen guardian know your intentions before your will is finalised. What you don’t want is to make the appointment only to find that for some reason they were unable or unwilling to accept the guardian appointment.
It is possible to name in a will not only your chosen guardians, but replacement or substitute guardians if your first choice are unwilling or unable to fulfil the role.
This works very well where a person wants to appoint their parents or in-laws to act as guardians, but are very much aware of their age and want to have a contingency in place if their parents or in-laws are not around themselves to act.
We often recommend that if you are appointing guardians who are your parents or in-laws that you also appoint substitute guardians who are closer to your age or younger, as they may be required to step in and act as guardians themselves.
Thankfully the law changed on 1st December 2003 where an unmarried father can have automatic parental responsibility for a child if the mother passes away providing that he is named as the father on the birth certificate.
However, there can be situations where the named father on the birth certificate is not the person involved in bringing up the child as the couple split up soon after the baby was born and the mother entered into a new relationship with a person who started to treat the child as their own.
In this situation then it is important for the mother to have a will and appoint the new partner as the guardian. This does not guarantee that the father named on the birth certificate will not be able to apply and be granted parental responsibility, but it does mean that if the natural father doesn’t come forward then the guardianship appointment in the will should stand.
Guidance for Guardians
Once you have made your Guardian appointment in your will, you can take it to the next stage where you give some guidance as to how you would like your children to be bought up if you were not around.
This guidance is not included in your will but instead on a separate document called a “Memorandum of Wishes”. This document can be kept with the will but not attached or pinned to the will.
As the memorandum of wishes is not part of your will you are able to change the document as often as you want to.
All you need to do is change it, print it, sign it, date it and then replace the older version.
In this document you can go into as much or as little detail as you want regarding your wishes on how you want your children to be bought up. Your executors will pass a copy of this to your guardians and if you have chosen your guardians well, they will fully respect and follow your wishes.
If you would like to learn more call us or simply leave you details in the callback form.