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divorced, what happens if I die regarding DD, XH and guardianship??

(11 Posts)
skyebluesapphire Thu 22-Nov-12 15:13:31

Hi, I need some legal advice regarding my will. My Dd is only 4. I own a bunglow, and have a small savings account.

I presume that if anything happened to me, that my DD would go to live with XH, but can I appoint a guardian in lieu of me to make decisions on my behalf? I don't know how these things work....

Should I make allowance for a guardian in my will, as what if XH should die before me? I would have to make a new will then to appoint one?

I want to leave everything in trust to her, with access at 21, but access before then for Uni or anything important.

Xenia Thu 22-Nov-12 17:11:38

Yes, usually she would go to her father if you died. You can however leave yoru money elsewhere. Someone I know found his wife when dying chose to change her will to lave her half of the house and savings (they were still married and in love) to her children in trust, her mother and sister to manage that as she wanted all that money spent on school fees not her husband's new wife or new children or cars and drink. He accepted it with a good grace although it meant a lot of contact with mother in law after the death.

You can also leave a letter of wishes which is not legally binding but commonly doing setting out your preferences for things like with whom your daughter my live and you can also in your will deal with who she lives with if your husband dies first. If you have life insuance and your assets are over the inheritance limit including any life insurance you can put the insurance in trust now so that bit is out of the inheritance tax 40% charge. It is probably worth seeing a solicitor who does wills really.

skyebluesapphire Thu 22-Nov-12 18:21:23

I dont wAnt XH to have any control over the money due to his spending and debt problems, so need to make sure he can't get his hands on it.

Life insurance would clear the mortgage so bungalow value well under IHT limits.

I also want a female presence from my family in her life, so would appoint my cousin who is her godmother as guardian in my place if that's possible

Xenia Thu 22-Nov-12 22:39:31

Technically a child with a living parent does not need a guardian so although you can express your wishes the remaining parent (unless they are subject to some kind of court order to keep them away from the child) can ignore the wishes.

Xenia Thu 22-Nov-12 22:40:08

In the same way that if he died and said he wanted the child given to his mother not you, you could ignore that.

holidaysarenice Sat 24-Nov-12 18:54:43

You can however appoint anyone you want/choose to have control over her inheritance fund.

My family have done it for a little girl as the deceased didn't think ex dw wud use it properly.

skyebluesapphire Sun 25-Nov-12 20:40:43

My solicitor said that my executors would also control her money... My ex has gone bankrupt once and I think is on the verge of it again, so there is no way that he will ever have control over her money

mumblechum1 Sun 25-Nov-12 20:56:53

OP, although the usual thing is for a child to go to their surviving parent you can still appoint a guardian in your will. This works in circs in which the child has v v little or no contact with the surviving parent, and so by declaring who you'd like your dd to live with, you are making it clear to the court, if your guardian and the surviving parent ended up in a dispute, that you didn't want her to go to her dad. The court isn't bound by the appointment of a guardian but would take into account your reasons for that appointment.

It doesn't sound as though you wish to prevent your dd from going to her dad, though.

So far as the money side goes, I normally insert a clause declaring that the guardians can take reasonable sums from the trust fund. The fund is administered by your executors/trustees, so if your ex was asking for unreasonable sums then they could refuse to release the money to him

I'm a will writer and have a paid for advert over on Classified (Small Businesses) if you're interested.

skyebluesapphire Sun 25-Nov-12 22:20:54

thanks. I expected that she would go to live with him, although I don't know what the hell he would do, as he has no support network like I do and it would mean her moving schools and everything, but I presume that she would go to him.... I did mention it in mediation.

Yes, I wanted to appoint a guardian to just have a say over her upbringing and somebody that XH could turn to if he needed help.....

I would expect the money to go to her when she was 21, but be allowed to withdraw some if needed for education etc

mumblechum1 Mon 26-Nov-12 11:47:56

Yes, that's what normally happens. If she went to a guardian, then they would apply on her behalf for funds from the trust, but once she's 18 and the guardianship lapses she would approach the trustees direct, and of course so long as there was a good reason to take the money out, and enough in the fund, then they would release some of the funds.

digerd Tue 27-Nov-12 18:01:56

Wish we had many of the continental laws, which make the heirs the blood-line children by law.
My sister and BIL, although the 2dcs are adults, have drawn up a Will which states that when one of them dies before the other the surviving spouse will inherit, but if they marry again, they will pay the 2 sons their half of the inheritance beforehand the marriage.

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