Writing a will & parental responsibility

TotallyBroke

I have a question and ultimately I know I need to speak to a solicitor. One that specialises with wills but wondered if anyone had an idea.

OH and I are not married but he is named on birth cert of our son so does have parental responsibilty.

I want to make a will to provide for DS if anything happened to me.
Property is in my name and was bought before OH and I got together.

If anything happened to me it is my wish that house gets left to my sister. I would also like her to be DS legal guardian (substitute mum I suppose). They would be able to live in my home or my sister could sell my house and her flat. Enabling her to buy somewhere for them both and have money to give my son everything he needed.

Now because OH has parental responsibilty is that possible. Or does DS automatically have to live with him. Don't get me wrong he is not a bad Dad at all but I worry he wouldn't cope on his own. We are having problems at the moment which is another factor for me wanting this.

I have told my family (parents and other sister) of my request but would hate for them all to be fighting over DS and my property. Even if sister is not able to become guardian I would still want her to have the house and allow OH and son to live there. That way I know DS would not be homeless down the line.

Any thoughts greatfully received. Thanks

Mojisola

TotallyBroke wrote: »

If anything happened to me it is my wish that house gets left to my sister. I would also like her to be DS legal guardian (substitute mum I suppose). They would be able to live in my home or my sister could sell my house and her flat. Enabling her to buy somewhere for them both and have money to give my son everything he needed.

Now because OH has parental responsibilty is that possible. Or does DS automatically have to live with him. Don't get me wrong he is not a bad Dad at all but I worry he wouldn't cope on his own. We are having problems at the moment which is another factor for me wanting this.

I have told my family (parents and other sister) of my request

Have you discussed it with your OH? Seems like he should have an input in it.

I don't know the legal stuff - though I would expect the father of the child to have the first say in what happens. As far as the house goes, you can leave your stuff to whoever you want but shouldn't it be in trust for your son? If your sister owns the house and ever needs to claim benefits, she won't be entitled to means-tested ones. If she had a relationship breakup, the house may have to be sold as part of a divorce settlement. If it isn't her residence, when the house does get sold, she will have to pay capital gains tax on it. Lots of problems.

tsstss7

When I wrote a will I was told my ex OH (who has pr too) would automatically get custardy of my son if I died and I named him anyway to make it clear to family that I would be ok with that and hopefully they would have the good sense not to contest it (he is his dad after all).

Personally I think you would be better off naming your sister as guardian should anything happen to you both, since unless there are clear issues your oh will get ds anyway...

You can of course leave your house to who you wish but might not your OH have an interest in it because of living with you there and paying part /towards the mortgage? If so he might contest the will and that would cause ill feeling.

I can understand why you might wish to leave him out of your will if it looks like you may split but you may be better off leaving it to your son. If you leave it to your sister it (or the proceeds of it) may well not pass down to your son ever.

pboae

You can't leave a child in a will. All you can do is express a preference that your sister looks after him. Usually he would go to his father, but even then the courts still get a say in it. If you have good reasons for that not to happen then you need to write them out in full, with as much detail and evidence as you can, and include that with your will. The courts will take that into consideration but there is no guarantee that they won't still award custody to his father. Equally, they may decide that it's not in his best interests to go to your sister either and they may choose an alternative arrangement. Although it would be unusual for a court to decide a child shouldn't stay somewhere within the family (when possible), but it's not unheard of.

Lynn11

We made a will when I was pregnant and we had an extra letter which stated that if me and my husband were killed together, then our preference to look after our child would be my mum. We can change this at later date if we wish as it is only an extra letter which is attached to the original will. Your solicitor will advise you the best way to put into writing your wishes. Have your spoken to your partner regarding this as you could put his name down and then change it later if you feel the need, this way you are giving him a chance.

localhero

Hi TotallyBroke,

Your simplest and fairest course of action would be to leave the house in trust in your Will to your son until he reaches 18, or a later age stipulated in your Will. Leaving it to your sister would be unwise for a variety of reasons, most of which Mojisola correctly states.

You will need to appoint at least two trustees who you trust completely to hold the estate for him until he inherits. Perhaps your sister as one of them?

You could also provide a right for your partner to occupy the property until he dies so that a) he isn't turfed out of your house, and b) that he doesn't challenge your Will later.

You could appoint your sister as well as your partner as joint guardians in your Will. If you want your son to live with your sister though, that would be controversial - and if he disagrees, is likely to result in a dispute. You may have good reasons of course, and if so, you should state them in a separate document. The court would then be obliged to take into account your reasons to help them decide what would be in your son's best interests.

If you don't have a problem with your son living with him, then your sister could provide guidance where necessary with regard to the major decisions such as schooling etc.

This sort of set up would be fairly straightforward to put together in a Will, so you don't necessarily require the services of a solicitor. A professional Willwriter would suffice, though choose carefully.

surreysaver

Imagine if your OH wrote a will saying his child to be looked after by a member of his family if he died - would that seem right to you? Just because he is a man does not mean his parental responsibility is any less than yours.

Mojisola

localhero wrote: »

Your simplest and fairest course of action would be to leave the house in trust in your Will to your son until he reaches 18, or a later age stipulated in your Will.

You could also provide a right for your partner to occupy the property until he dies so that a) he isn't turfed out of your house, and b) that he doesn't challenge your Will later.

Wouldn't giving the partner the right to live there until he dies cause problems for the son?

I can imagine all sorts of difficulties - an adult son owning the house his Dad occupies! Could Dad to forced to pay rent or contribute to house repairs? What would happen if the son needed to move away - he would have to rent somewhere else despite owning a house. What if his Dad moved a new wife into the house who didn't get on with the son?

It's all a minefield and I don't envy TotallyBroke trying to sort it out!

localhero

Mojisola wrote:

Wouldn't giving the partner the right to live there until he dies cause problems for the son?....It's all a minefield and I don't envy TotallyBroke trying to sort it out!

There are pros and cons with any course of action Mojisola - and yes, there is the possibility that the son could be invited to leave by the father after reaching adulthood.

If the OP instead doesn't give a right to remain to the partner then she runs the risk of the Will being challenged.

Whatever she does decide, leaving the house in trust for the son at least guarantees that he will inherit it.

Mojisola

It really brings home how important it is to have a well-written will!

TotallyBroke - have you decided what to do?

TotallyBroke

You have all opened up a lot pros and cons and although clarified a few things for me they have also created more questions.

Surreysaver ~ Without going into all the ins and outs (they are posted on other threads) my OH is a gambler. I am not questioning his ability to be a good Dad. I am questioning his ability to be able to survive without me bailing him out. Having any amount of money, even if property is a big risk for them both to be homeless.
While at the moment (up until last week) he was giving me money towards things like mortgage and bills. It is debateable that any of that money has actually been spent on that purpose. (It got to stage where he would give £1000 and then gamble from the account nearly £1500) This is why I don't think he could claim any interest in the property.
By leaving him the property for him and ds to live in. I would worry that if or when the gambling got out of control, the house would be taken to bail him out. Therefore leaving him and ds homeless. I would also worry that if then anything happened to him that because it would be his estate that others would be able to claim a percentage. (Even though it is my house) DS would end up with virtually nothing.
As I say he is not a bad Dad just one with an illness that can take over some times.

I had not thought about the option of putting it in trust for son. Who would be liable for the grount rent and service charges etc? Would that be OH if they were both living there, as that would then mean it is another bill for bringing up OH just the same as gas and electric?
If house was sold and the money put in trust for ds. Could whomever draw on that money and use it to clothe and feed ds.
As for my sister, I trust her completely and would never doubt that she would not pass on the house to ds ever. I'm completely satisfied that she could do just as good a job as me at being his mum or even better in some instances. She was there with OH at ds birth and was the one to cut the cord. She would treat him as her own flesh and blood.

I think this is something that I need to talk to OH about. I may ask OH to appoint a trustee from his side of the family. Then all of us can sit and talk about the best solution. I'm going to guess that if we came to some agreement and he wrote a letter agreeing to this. It could be witnessed in front of a solicitor and trustees and kept with the will. I'll guess that a Judge would take into account that letter if it was ever needed.

Thanks again for all your comments and suggestions.