help needed dealing with will

Yorkshireman99

TBagpuss wrote: »

No they aren't.

As gurduian you have lgal rights to make decisons for the child, including deciding where and with whom he should live. You can simply confirm to the uncle that as Son's guardian you are happy for him to live with his uncle and for uncle to claim any relevent child benefit etc.

You may wish to do a 'to whom it may concern' letter stating specifcally that you delagte your parental responsibility as [name of son]'s legal guardian to [name of uncle]for all purposes and until further notice - this would enable Uncle to sign school permission slips etc as necessary, if his role is questioned.

There is not the slightest need for social services to have anything to do with it.

It would be possible for Uncle to apply to the court for a formal order, but it is not necessary as there is no dispute overwhere he should live, and given Son's age is unlikely to be appropriate (orders are not normally made for children over 16)

So far as acting as executor is concerned it's not clear yet whether the estate is insolvent.

Do you have a rough idea of what the hosue is worth, and what the total amount owing on the mortgage + secured loan is?

It may well be that the house will have to be sold, to pay those debts. Who is the beneficiary?

If you have not yet done anything to deal with the estate then you can renounce as executor - it would then be possible for any substitute to take it on or if noone else is named, for your friend's fmaily to apply for letters of administration. If Son is beneficiary it might make sense for you to renounce and let Uncle deal.

If the estate is bankrupt then in order to avoid being personally liable for any shsortfall you have to make absolutely certian that you follow the rules exactly. If you think that that is the situation, you can renounce your role as executor. As I understand it, that would not affect your appointment as Guardian to the child, as that is completely separate.

You are simply wrong. The will may have expressed a wish for someone to be guardian but it will need ratifiying by the Court with the involvement of Social services.

theoretica

Yorkshireman99 wrote: »

You are simply wrong. The will may have expressed a wish for someone to be guardian but it will need ratifiying by the Court with the involve,emt of Social services.

Indeed - you can't give children away just on your say so, even in a will!

I believe you can, however, appoint whoever you like to be the financial trustee of any money that you leave to the children in your will, which might apply if the estate turns out not to be insolvent.

Kynthia

I've no experience of wills or probate. However if the property was owed as joint tenants then it automatically goes to the ex-wife along with the mortgage and charges that include her name. Also pensions I think usually are paid directly to someone rather than to tge estate, so the pension wouldn't be used to pay any estate debts. If you've told tge pension about the death have they been in contact to say there was a named recipient by your friend? It might be relevant to them that he was divorced but has a child as tge pension trustees have discretion about who they pay out to if circumstances have changed since the member last named a beneficiary.

securityguy

"You are simply wrong. The will may have expressed a wish for someone to be guardian but it will need ratifiying by the Court with the involvement of Social services."

For a 16 year old? Social services would not want to get involved, and have very little locus to do so. There's nothing stopping a 16 year old living on their own, particularly if they have direct or indirect access to a pension payout, and a family court would not intervene unless there were clear signs of abuse. And it's not obvious what intervention they can make: taking people aged over 16 into care, or making them wards of court, de novo is extremely tricky, and properly so, and family courts will assume that 16 year old can decide their own living arrangements unless there is very clear evidence to the contrary (mostly if they are deemed vulnerable). The test would normally involve asking the 16 year old what they want to do, and doing it.

You are right in general: wills cannot appoint appoint guardians of minors, they can only nominate them. But a sixteen year old is not, in this case, a minor, and they would be deemed competent to make their own decisions. Although schools do continue to ask for "parental permission" slips for sixth formers, it's not clear what the legal basis for that is, and in principle there's nothing stopping a pupil signing it for themselves.

I have had close dealings with someone aged 17 and in care, and the legal position is very different to being 15. Remember, it's not that long ago that the state washed its hands of children in care at sixteen anyway.

securityguy

theoretica wrote: »

Indeed - you can't give children away just on your say so, even in a will!.

That's right. But a 16 year old is not, for the purposes of this discussion, a child. It would be extremely difficult (not impossible, but the threshold for doing so would be rightly high) to dictate to them where they live.

Absent abuse, clear and present (ie, not just theoretical) risk or extreme vulnerability, it is hard to see how a situation would arise where a relative would offer accommodation (either in their own house, or by renting as trustee of the 16 year old's affairs) and somehow a court would intervene to prevent it. And it's not at all obvious how such a decision would be enforced if the sixteen year old simply got on a bus and went to their new house.

\A court would assume that they were able to make their own decisions, unless there was clear and compelling reasons otherwise, and holding 16/17 year olds against their will is the sort of stuff that exists only in the fantasies of controlling helicopter parents. A will can appoint trustees to control the financial affairs of the 16 year old in so far as their affairs are the concerns of the estate, and overturning such appointments (as opposed to challenging the behaviour of the appointee once the trust is active) is virtually impossible, assuming the trustees aren't bankrupts and the usual exclusions. If the 16 year old and the trustee act in concert to provide for the 16 year old's needs according to the 16 year old's wishes, there is little a court can, and even less that a court would, do to intervene. Aand it's not obvious how they would even become involved unless the 16 year old complained.

Yorkshireman99

securityguy wrote: »

That's right. But a 16 year old is not, for the purposes of this discussion, a child. It would be extremely difficult (not impossible, but the threshold for doing so would be rightly high) to dictate to them where they live.

Absent abuse, clear and present (ie, not just theoretical) risk or extreme vulnerability, it is hard to see how a situation would arise where a relative would offer accommodation (either in their own house, or by renting as trustee of the 16 year old's affairs) and somehow a court would intervene to prevent it. And it's not at all obvious how such a decision would be enforced if the sixteen year old simply got on a bus and went to their new house.

\A court would assume that they were able to make their own decisions, unless there was clear and compelling reasons otherwise, and holding 16/17 year olds against their will is the sort of stuff that exists only in the fantasies of controlling helicopter parents. A will can appoint trustees to control the financial affairs of the 16 year old in so far as their affairs are the concerns of the estate, and overturning such appointments (as opposed to challenging the behaviour of the appointee once the trust is active) is virtually impossible, assuming the trustees aren't bankrupts and the usual exclusions. If the 16 year old and the trustee act in concert to provide for the 16 year old's needs according to the 16 year old's wishes, there is little a court can, and even less that a court would, do to intervene. Aand it's not obvious how they would even become involved unless the 16 year old complained.

How do you dream up such arrant nonsense? Regardless of what you may think the Court regards those under the age of 18 as minors and the court will need to be involved usually along with Social Services. Of course with a 16 year old the Court will take their views into account but the ultimate decision will be made by the Court both their care and the financial arrangements.

securityguy

"Regardless of what you may think the Court regards those under the age of 18 as minors"

They don't. Children Act 1989, S.31(3) "No care order or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen, in the case of a child who is married)." In practice my original point stands: no court would make an order in regard to a sixteen year old without massively compelling evidence of abuse, simply because by the time the case made its way through the courts it would have already timed out, and enforceability is almost impossible, and therefore even if social services were involved (how? why?) they would not even try.

A newly orphaned 16 year old would be offered help via adult social services, if they came to social services' attention, not the family courts, unless there were younger siblings involved. They might in the end find themselves in foster care, although foster care for those over sixteen is a complex matter, but if there were willing family who weren't obviously abusive the matter would never get to any formal adjudication. The issue of Guardianship barely arises: by the time such an order were granted, the sixteen year old would be old enough that it didn't matter.

Of the other avenues, Child Arrangements Orders expire at 16 unless explicitly written to extend to 18 (which is rare), and there is no way on earth that a child aged 16 at the inception of such a process would be made party to an arrangements order anyway, so the expiration is moot. Special Guardianships don't apply either, because again they would have expired before they could be granted.

The Family Court has little jurisdiction over assets left in trust to sixteen year olds, so has almost no ability to get involved in "financial arrangements". It has no jurisdiction over people aged seventeen at the start of the matter, and would as a matter of policy not get involved in sixteen year olds other than in extreme circumstances. The idea that courts and social services would get involved in a case involving a sixteen year old and a willing uncle is just silly: they have little authority and even less interest in such cases.

In practice, adult and child social services would liaise and offer such assistance as they could, but courts? To do what? Under what legislation? As so often, you appear to believe that there are omniscient courts sat ready to swoop down on matters which are not explicitly notified to them. In the OP's case, at which point do you think your "Court" would get involved? Why? There's a trust, there's a sixteen year old living with their uncle. At most, there might be a bit of debate over child benefit if the child is in full time education, but even that is easy enough to resolve. Courts? Seriously?

ETA: "A Child Arrangements Order expires when the young person reaches the age of 18. However, you can only apply for a Child Arrangements Order for a child aged between 16-18 in exceptional circumstances." See http://childlawadvice.org.uk/information-pages/residence/

getmore4less

I asked this before on another thread a while back and no one came up with the answer

Those on this thread that believe what they say now have a chance to support their claims

Which laws superseded those that cover the appointment of guardians by parents and guardians that require the approval of the courts.

http://www.legislation.gov.uk/ukpga/1989/41/section/5

(3) A parent who has parental responsibility for his child may appoint another individual to be the child’s guardian in the event of his death

AIUI the default is the appointment stands until there is a successful challenge.

securityguy

"AIUI the default is the appointment stands until (there) is a successful challenge."

That's certainly my understanding. The will nominates a guardian, and the nominee has the powers of a guardian unless and until a challenge succeeds. Most guardianships, pace YM's someone excitable talk of Courts, don't get near a court: assuming the matter comes to social services' attention in the first place they might give matters an informal once-over, but they are much more concerned about living arrangements than guardianships and provided the child is cared for, that's pretty much the end of the matter.

I made the nominate/appoint distinction upthread rather carelessly: what I meant to say was that unlike financial matters in a will, which require massive legal force to overturn, guardianships can be challenged and overturned by social services relatively easily in the case of younger children, so the guardianship might be regarded as slightly provisional on their approval. But unless it's an argument between two relatives (perhaps the will appoints a resident parent's parent, but the ex-spouse disagrees) where the outcome is one or both parties being appointed as guardians, courts would be very reluctant to make a care order such that the state becomes the corporate parent, mostly because it's now understood what a bad job the state mostly makes of it.

securityguy

Oh, and GM4L is citing current law as amended.

Over to you, YM.