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Guardians/Executors

(13 Posts)
Pippaandpolly Tue 23-Aug-11 22:44:58

We went to a solicitor today to make our wills as we're expecting our first baby next month. My mother had already offered to be guardian to any children we have in case we both died and we're quite happy with this (had been thinking about DH's cousins but plumper for Mum in the end.)

Solicitor said it's common to have separate executors to guardian to a) split the responsibilities up and b) protect the money for children should the guardian turn out to want it for themselves. We're not worried about my mum doing the latter but thought a) was reasonable and fair. We've asked my brother (a solicitor) and DH's father to be executors.

Spoke to my mum tonight and she's 'confused and upset' and doesn't see how she can be guardian if she doesn't have access to the money.

Have pointed out that she WILL have access, through the executors, and that the situation is not meant to cause any offence! She is worried that if the executors chose to, for instance, lock cash away in an investment, she wouldn't be able to get to it to pay for something for the children. We have chosen my brother and DH's dad in part obviously because we trust them not to make any decisions that might compromise the children!

Am I missing something here? Is she right that it would be impossible for her to be guardian without also being an executor? The solicitor we saw made it sound totally normal and sensible but now she's got me worried.

Thank you for any advice!

Hassled Tue 23-Aug-11 22:51:39

I think a "separation of powers" (can't think of another term) is very sensible but have no legal knowledge - I think if she couldn't be a guardian without being an executor the solicitor would have made that clear to you, so it's safe to assume your mother is wrong.

This is less of a legal question and more to do with your mother massively over-reacting to something that will hopefully never even be an issue. You've shown how much you love and trust her by wanting her to be guardian, but she's picked up on the thing where you've put other people in a position of trust to get upset about. I'm sure she'll calm down with time - maybe if you make it more about wanting to be sure all sides of the family are involved than about the actual financial responsibility, she'll be more accepting.

But stick to your guns - your plan sounds very sensible.

Pippaandpolly Tue 23-Aug-11 23:03:00

Thanks Hassled-she does have a tendency to overreact and I also have a tendency to get panicked by her!

I think we need to go back to the solicitor and ask exactly how it works in practice-would she need to write to the executors to say 'today I spent £3.49 on toothbrushes, please reimburse me' or can they arrange to give her yearly/monthly lump sums or do DH and I need to specify either way...

It's made harder by the fact that we're talking about hypothetical money-at the mo our children stand to inherit a 6 year old car...! Next step life insurance...

Pippaandpolly Wed 24-Aug-11 09:43:12

Little bump for the morning crowd - anyone know how guardians get access to money through executors generally? Is it up to us or is there a way it usually happens - 'allowance'/receipts etc?

sparks Wed 24-Aug-11 11:32:18

My dp and I have this kind of set up in our wills, our solicitor gave us similar advice.

I think you are a bit mixed up about the terminology. When you say executors, I presume you mean trustees. Our wills say if we die our money will be held in trust for the benefit of dd until she is 18 years old. After that the trust would end and she would be able to do what she wants with the money. (Hopefully fund her university education, not spend the money on booze and fags wink.)

AFAIK it would be a matter for negotiation between the trustees and whoever is caring for dd, providing the money is used for the benefit of dd. Yearly/monthly lump sums would be OK. Also up to the trustees as to whether they would require receipts/budgets. Assuming your bro and DH's father are reasonable people, they should be able to work something out.

Pippaandpolly Wed 24-Aug-11 12:29:14

Thanks-he didn't mention anything about trustees so I guess I assumed the executors of the will would be the people with control of the money...but maybe not?

sparks Wed 24-Aug-11 13:50:32

It sounds like that is something you need to ask your solicitor.

As I understand it the executors are executors of the estate, which would be settled not too long after the death. Once the estate is settled the money would be held by the trust and the trustees have control of it. The trust could last for years, depending on the circumstances. In our case the executors and the trustees are the same people, but I guess they don't need to be.

It feels funny to be talking to you about our premature deaths, but of course we hope that none of this will ever happen.

nocake Wed 24-Aug-11 14:13:08

Please reassure your mum that's it's perfectly normal for the guardians and trustees to be different people (in fact a good will writer would discourage you from having the same people doing both). We have BiL and SiL as guardians and my DS and a close friend as trustees (and executors). If the worst should happen BiL and SiL would look after DD and the trustees would provide any money they need to do this.

The will should be written to specify that the trustees have an obligation to cover the guardian's expenses in looking after the children. That means they can't lock all the money away in a long term investment.

fluffles Wed 24-Aug-11 14:18:18

the executor is somebody who sorts it all out paperwork-wise, ideally they're not somebody who benefits from the will.

if you're leaving your money to your mum to look after your DD or in trust for your DD then that money will not be in the hands of the executor.

i think there's a lot of confusion here between executors and trustees which you need to iron out before progressing any further.

mumblechum1 Fri 02-Sep-11 10:14:39

Just to clarify, usually the people named as Executors will also act as Trustees, which means that they control the money and hold it on trust for the benefit of the beneficiaries, particularly for children under 18, 21 or some other age specified by the person making the will.

The guardian generally looks after the children from day to day and will agree an amount to be taken from the trust fund for the children's maintenance. This may be a simple direct debit from a bank account, or a more ad hoc arrangement, say a few thousand pounds every six months or so.

Lizcat Fri 02-Sep-11 13:51:43

Our compromise is that DD has two guardians, one of whom is one of the two executors of our will. We choose this combination as the other executor will always do the financially correct thing, but we also wanted someone who would protect DD's current welfare in the rare instance where the financially correct thing is not the best welfare decision for DD. Particularly as the money is tied up till DD is 25years old.

minibmw2010 Sun 04-Sep-11 15:38:53

The Executors/Trustees would oversee any monies that are left for your child and should agree to reimburse 'reasonable and necessary expenses' by the Guardian (your mum). This is not because your mum can't be trusted but to safeguard any inheritance so your mum needs to get over this point or I'd be tempted to rethink her position as Guardian I'm afraid.

Waspie Sun 04-Sep-11 17:59:48

Please read this thread if you are ever tempted to have yor child's guardian as your executor/trustee.

www.mumsnet.com/Talk/legal_matters/1113418-Adoption-fostering-and-a-bit-complex

This awful and tragic sitution of Zeebrugge's made me change my will. My sister is now the guardian of my son, and my partner's sister and my best friend are the executors of my estate. This is not because I distrust my sister, because I trust her implicitly. It is also in her interests because it provides her with the protection of the division of responsibility and removes her from any shadow of doubt over mismanagment of my estate should anyone ever question her guardianship.

I hope you don't mind me linking to your thread, Zeebrugge, I hope you are doing well.

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