Having a child is one of the most special moments in a parent’s life. There is the leadup to the birth, the preparation to get the baby’s room ready and all the presents from friends and relatives. Furthermore, once the baby has arrived and comes home, there’s the change in family dynamics with a new person in the house – whether it’s a first child or another addition to an already busy household!

Perhaps the last thing on the parents’ mind when the baby comes home is to think about making a Will. However, if there is anything that is certain in life it is that it is uncertain. Things happen which can cause dramatic change and it is important to think about what might happen if there is some catastrophe and your child or children become orphaned.

Choosing a guardian for your child

When making a Will, it is clearly important to consider how your estate should be dealt with after your death. However, for families with children below the age of 16 in Scotland, it is also important to think about what might happen to them should they become orphaned.

One of the key elements when making a Will in Scotland when you have children is to include a guardianship provision. This is where you appoint someone to look after your children if they become orphaned. It is not unusual for the guardians to be relatives who know the children and who you believe will always act in the best interests of your children and look out for them.

If you do not appoint a guardian in your Will, should your children become orphaned, the local authority will step in and arrange parenting for your children until they reach the age of 16. Whilst the local authority will always prefer to arrange the care with a relative, that is not always what happens. The local authority may decide that it is in the best interests of the children that their care is given to someone they nominate. In the absence of a Will, it is difficult to challenge the decision of the local authority. That would then mean the care of the children would be given over to people they do not know.

When you do appoint a guardian for your children, please make sure you discuss this with them. It is important they know about the appointment and can discuss any perceived problems that might arise should the children become orphaned. You would also want to know if they were prepared to accept the responsibility before being appointed. In addition, it is important to think about appointing someone of an age who is likely still to be alive when the last of the children reach the age of 16.

Also, consider whether you should appoint an individual or a couple and, perhaps, a substitute in case your first preference dies before you do. These are all important things to think about when you are considering appointing a guardian.

Appointing trustees

Any property, assets or money you leave for your children will be held in trust for them until either they are 16 or another age you specify. Most parents will specify an age between 16 and 25 when the children should receive their inheritance.

You should think carefully about who should handle administration of the trust until it pays out to your children. In many cases, the first thought is to appoint the guardians as trustees so they are able to manage the funds for the benefit of the children they are caring for. However, it may be that you have a friend or relative with experience in managing funds and they would be a more appropriate trustee than the guardian.

You should also remember that your children will have needs as they grow older and it is only fair and reasonable that the guardians are reimbursed for any expense incurred in looking after your children as they grow up. However, whilst that is fair and reasonable, it may be sensible to appoint an independent person, perhaps a solicitor or accountant, as an additional trustee to help in preparation of accounts and administration of the trust property and money. In addition, it is always preferrable to have an independent voice when there is a potential conflict of interest between the needs of the guardians and the needs of the children.

Leaving gifts for your children

You can also decide to leave specific gifts or legacies for your children in addition to any residue of your estate that is held in trust for them.

To do this, simply say what it is you wish to leave to each child. It may, for instance, be an item of jewellery you wish to leave to one of your daughters or a watch to a son. If it is a sum of money, it will be held in trust for them until they reach an specified age (which you decide) to receive it although you may choose to allow your trustees some discretion as to when the child should receive the gift.

What happens if I don’t have a Will?

If you do not have a Will, an application will need to be made to the court to appoint an executor to administer your estate. If your children are all under the age of 16, they will not be eligible for the appointment as executor. That means an adult will need to be appointed.

If you have children, it is sensible not only to make your Will but to make provision in your Will should your children become orphaned. You should not assume the courts will make the same decision you would make about the guardianship of your children.

Specialist Wills Solicitors, Edinburgh

Kathryn Johnston is an Associate within Murray Beith Murray Asset Protection group and is an estate planning specialist. If you would like to discuss how you can make a Wil that caters for your children as well as dealing with your property and assets after you die, please complete our contact form, or call us on 0131 225 1200.

Murray Beith Murray was established in 1849 as advisors for generations of clients, committed to our values of integrity, expertise and trust. This aim and these values continue to this day, as does our commitment to be here when you need us.