Wills and Children

pollyanna24

I have two children. I am separated from their father and they live with me. I assume that my ex would get full custody of my children as he has parental responsibility.

Just wondered how I need to word a Will. Does it state that he "gets" them and if he is prior deceased, then I put someone else?

I'm thinking about this as my brother and sister-in-law have put me down as legal guardian to their (as yet unborn) child if anything happens to the two of them.

All the money side of things, as I want everything (i.e. equity in my house) to go to my children, but this I imagine is simple enough and is in pretty much every Will.

Mimi_Arc_en_ciel

pollyanna24 wrote: »

I have two children. I am separated from their father and they live with me. I assume that my ex would get full custody of my children as he has parental responsibility.

Just wondered how I need to word a Will. Does it state that he "gets" them and if he is prior deceased, then I put someone else?

I'm thinking about this as my brother and sister-in-law have put me down as legal guardian to their (as yet unborn) child if anything happens to the two of them.

All the money side of things, as I want everything (i.e. equity in my house) to go to my children, but this I imagine is simple enough and is in pretty much every Will.

He wont automatically get them - it depends on the situation (Does he see them regular) and if your child is old enough they *might* get a say on where they want to live. You can put whatever you like in the will about what you want to happen to your children - Doesn't mean it will. Same situation for your brother - He can say he WANTS you to have the child, again, doesn't mean you will automatically get that child.

Money - depending on their ages - I would consider putting it in a trust until they are a certain age.

System

You can not bequeath children in your will.

You can put a wish that you want x to be legal guardian but there is no guarantee that a court will follow that.

Those with parental responsibility are first in line to take the children.
http://www.henmansfreeth.co.uk/guardianshipofchildren.pdf

TBagpuss

You can decide who you would want to look after your financial assets on beahlf of the children, while they are still minors.Money left to children has to be held on trust, but they normally become entitled to it at 18.

Get this drawn up properly as there are strict rules about managing money for minors and it is normally appropiate to give your trustees greater powers than the basic rules allow, so that they can be a little more flexible.

The people you appoint as trustees don't need to be the same person or people who the children are likely to live with (although they may be)

You can apooint a Guardian for the children in your will, however that appointment only takes efect if there is no-one left who has Parental Responsibility for the Children.

You can also leave a letter of wishes, setting out where / with who you feel the children should live, and why - those people can then, if they wish, apply for Residence for the children followign your death if necessary. A court will always make decisions based on what they consier is in the best interests of the children at the time the decision is made. depending on the children's ages, their own wishes and feelings may also be taken into account

macca1974

Just as a thought, and if this isn't the case, then please ignore me! If your house was purchased with your ex-partner originally, it may well have been done as a joint tenancy. If this is the case then if you die, the whole value of the property would pass to your ex-partner and not the kids regardless of what you say in your will. You'd need to consider altering the way you own the tenancy to tenants in common so you can then do what you want with your half.

RAS

Were you married to the father at the time of their births? If not check whether he has parental responsibility https://www.gov.uk/parental-rights-responsibilities/who-has-parental-responsibility

Did you buy the house jointly or not? Joint tenancy or tenants in common? That effects what you can do with the property.

You can make sure that any assets left to the children are controlled by someone other than their father if you wish but the only case of which I know where the mother tried to make someone else guardian resulted in the father taking custody immediately after the funeral.

If you are on good terms with your ex then discuss what you would like to happen if you both died.

getmore4less

AIUI you can draw up a legal guardian document seperate from a will, might be easier to change if you keep them sperate.

I also understand the law is you appoint and they become the legal guardian, it needs active court intervention to change it.
Which is very differnt to the courts decide.

Mojisola

getmore4less wrote: »

I also understand the law is you appoint and they become the legal guardian, it needs active court intervention to change it.

Which is very differnt to the courts decide.

I don't think this is right - you can say who you would like your children to be raised by but it has no legal standing.

laidbackgjr

A legal guardian is someone who would take responsibility for ensuring the safety and arranging who would raise the children in the event of the death of a parent(s), they do not have to actually do the raising themselves.

System

getmore4less wrote: »

AIUI you can draw up a legal guardian document seperate from a will, might be easier to change if you keep them sperate.

I also understand the law is you appoint and they become the legal guardian, it needs active court intervention to change it.
Which is very differnt to the courts decide.

I also believe that it needs active court action to invoke the legal guardianship. The legal guardian document that you draw up is only your wish and would be used as part of the evidence in court when applying for guardianship

TBagpuss

!!!!!! wrote: »

I also believe that it needs active court action to invoke the legal guardianship. The legal guardian document that you draw up is only your wish and would be used as part of the evidence in court when applying for guardianship

That's not quite correct.

You can appoint a Guadian for your children. That appointment only takes effect if there is no-one left who has Parental Responsibility.

So if you are the child's mother, and you and dad both have PR, you appoint a Guardian in your will and then die, the appointment doesn't take effect as there is still someone who has PR. It is then merely an expression of wishes and the proposed Guardian would have to make an application to court if they wanted the child to live with them, and the father did not agree.

If you are the only person who has PR, and you appoint a legal Guardian that appointment is effective on your death. No court intervention or ratification is required.

The Guardian has the legal right to make decision about the child, including deciding where and with whom they should live. In most situations, parents will appoint as Guardian the person they expect their child to live with if they die, but it is not compulsory - you might have a situation where grandparents were appointed as the legal guardian but chose to allow their grandchild to continue to live with his or her parent's (unmarried) partner.

And someone who was not named as Guardian could make an application to the court for residence of a child, and the Guardian would then be a party in those proceedings.

You may be getting confused with the appointment of a Special Guardian - Special Guardianship is a differnt process and is normally used where a child or children are living with members of their extended family members as a result of concerns for their safety - SG Orders can be made within care proceedings or as an alterntive to Care Proceedings. They give the SG Parental Responsibility for a child but effectively ggived them powers to veto he exercise of Parental Reposibility by parents, to enable them to protect a child. An SGO does have to be made by a court