It is inevitable during life, that families sadly have to navigate the loss of a loved one, but for children to lose a parent at such a young age is traumatic, confusing and creates emotional vulnerabilities at times when they are already making sense of their lives on a day to day basis.
You would ordinarily presume that the surviving parent would be the only person who has parental responsibility and should care for the children, but this is not automatically the case.
When parents have separated, the raw emotions of a loss of a parent for a child and the extended family are compounded by the legal position.
Under the Children Act if there was in existence a sole Lives With Order (residence order) in favour of the parent who died, and they had appointed testamentary guardians for the child in their Will, those appointed testamentary guardians will share will parental responsibility for the child, together with the surviving parent (if they have parental responsibility).
If there were no orders in place that determined that the child should live with one parent then regardless of who you have appointed as guardian in your Will, it would be the sole surviving parent that has parental responsibility.
Many people put off writing their Will until much later in life, thinking that Wills are only relevant if you have sufficient assets worth passing on via a Will. However, it is clear that (especially for those with minor children), the value in having a valid Will extends far beyond material wealth and covers (what is arguably much more important) – that is, who will look after your children after your death.
Another important decision to make, is whether you appoint the same or different people as guardians and the executors and trustees. If you die leaving minor children then (depending on the terms and structure of the Will), the trustees of your Will (a different role entirely to guardians) will have significant powers in relation to what money is applied from the estate for the benefit of those minor children.
Some clients, like the idea of appointing the same people as both the guardians and trustees. However, others prefer to point different people for each to ensure that there are checks and balances in place and that guardians do not simply have a pot of money to dip in and out of when they see fit, which may not always be for the children(s) benefit.
This niche point within the law highlights the importance of working with solicitors that work collaboratively, across disciplines. Our legal experts are on hand to advise you in a holistic manner (regardless of which department you have initial contact with). We are able to offer joined up meetings and advice because of the depth of knowledge within our practice areas.
If you are considering appointing Guardians for your children within a Will and/or whether they should be the same persons as Trustees and Executors within your Will, please do not hesitate to contact one of specialist Solicitors at McAlister Family Law or Vault Private client division of the Beyond Law Group.
