Guardianship Trusts

If you fail to appoint Guardians in your Will and both parents die before the children reach 18, the courts will appoint Guardians instead, but they won’t necessarily appoint the people that you would have preferred to take care of your children.

Under English law, a parent with “parental responsibility” can appoint legal guardians of their minor – under age 18.

Where parents are married at the time of their children’s birth, parental responsibility is automatic for both mother and father.  Assuming both parents have parental responsibility, the appointment of any guardian will not usually take effect unless and until both parents die.

If the children were born outside marriage, a father does not automatically obtain parental responsibility, although he can obtain it, unless the child was born after 1 December 2003 and his name is registered on the birth certificate

Whoever is chosen, it is important to discuss expectations and wishes with the potential guardian, to ensure that they are happy to accept the role. If not, there is a risk that the appointed guardian may simply choose to disclaim their appointment.

It is possible to appoint guardians for your children in your will, so that financial arrangements for the children and the guardian can be included and the single document can be stored safely.

It can sometimes be sensible to appoint different people to have the responsibility of dealing with the financial and administrative aspects of your estate from the people who have the practical responsibility of caring for your children

Trust fund

Under English law, it is not possible for children to inherit assets until they reach the age of 18.  You are able to determine what age you would like them to inherit 18, 21, 23, 25.  The age of the child to when they inherit is up to you.

Therefore, even if your will attempts to leave assets outright to your children, there will be an automatic “trust” imposed, so that the executors or trustees of your will remain responsible for the assets until the children reach 18.

Where large sums are involved, ages of 21 or 25 are often chosen, on the basis that the children are more likely to display a greater degree of financial maturity the older they get.