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AIBU?

Share your dilemmas and get honest opinions from other Mumsnetters.

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Original poster

To really not know who to name as guardian in my will?

62 replies

Impsandelves · 14/02/2012 22:27

We have young children, and really should write our wills.

We are putting it off as we cannot agree who we would name as legal guardians of the children should we both die.

I am not even sure if we get to decide in our will, or if the courts decide? I distinctly remember my parents telling me who would be appointed guardian to me and my siblings should they die - they had it written in their wills.

But I have also heard that the decision is made by the courts, as the closest capable relative.

Another concern is, what if the person appointed their guardian didn't have the financial ability to raise your children? Are you supposed to leave the guardian your estate as well, or part of it, to assist?

Does anyone have any real knowledge of this, and are we being unreasonable not to have at least something put on paper?

OP posts:

Saltire · 14/02/2012 22:30

We have wills. In ours we have expressed that we'd like my mum and step dad to care for our 2, however, 1 of my friends and her DH and one of DH's friends and his wife are also named - all decisions have to be run past them first! Also if my mum cannot cope or gets too old before DSes reach 18 then 1 of the couples will be their guardians. Maybe not to some peoples liking but thats what we wanted

WilsonFrickett · 14/02/2012 22:34

The court will only appoint guardians if you haven't done so in your will - so if you don't appoint someone you run the risk of someone you don't want becoming guardian at the court's discretion.

We have named two guardians (a couple) and three trustees (DM, DNeice and another BF). All our stuff will be sold and put in trust for DS, with a sum going to the guardians each month. If they need any additional funding (like, I dunno, DS needs to go to private school (unlikely but you know what I mean)) they can apply to the trustees to release extra funding. When DS gets to 25 trust is wound up and he gets any residual cash as an inheritance.

It was a total PITA to do, but honestly having done it, it felt brilliant, everyone knows what's going on and we both feel that we'd done something really positive for DS.

Original poster

Impsandelves · 14/02/2012 22:51

Ok we really need to tackle this.

We have no idea who to name as guardians though. One of my parents is estranged, the other has mental health issues.

DH's parents are too old at 65?? FIL is an alcoholic and MIL wouldn't cope long term, physically.

My siblings all too young/irresponsible. The same could be said for DH's siblings.

That really only leaves us with friends. Though we have lots of lovely friends, there aren't a huge number of stable couples within the group!

What do you do if there just isn't anyone??

OP posts:

EverybodysSnowyEyed · 14/02/2012 22:55

As I understsand it is an expression of wishes and not legally binding

I have my parents as guardian but it is up to them what they do with them! I trust them to make the right decision

MrsDeeBee · 14/02/2012 22:55

Imps

Hard one, isn't it ? I don't have anyone I would want my DCs to go to, so I just hope that nothing happens to me or DH and that we see them well into adulthood.

Am thinking that it is Very Important that I sort something out so that if the worst was to happen, they don't end up with people we wouldn't want them to be with.

EverybodysSnowyEyed · 14/02/2012 22:55

xpost

wrt siblings - don't underestimate their abilities!

DerbysKangaskhan · 14/02/2012 23:00

YANBU. DH and I are planning to renew ours since having DS2, but are unsure who to put down. Our problem is originally we had DH's brother who has since gone through advanced cancer, major surgery, getting to grips with new life (lost most of his bowels)...I wonder if the kids would be too much for him and his partner to handle? But then I think that about most of our friends as well. So debating on how to gently bring it up with BIL (who seemed really pleased that we'd asked him and I don't want to hurt him) and who in the world to take his place.

I'm actually more concerned about making sure some people don't get them if the worst were to happen (basically, anyone in my family -- which I think would be difficult as they're all Americans, living in America, and have no relationship with my kids). Of course I want to find the best person who can cope with all of them, but ending up with my family would be a nightmare come true.

Original poster

Impsandelves · 14/02/2012 23:02

Hi, just need to ask what 'xpost' means? Sorry, not a seasoned member yet!

I hope, hope that my siblings mature and would be up to the job. Really don't like brothers fiancé though but I digress!!

It really is a tricky one.

Another concern, if they go to my family, will DH's family lose any real contact over time, and vice versa?

OP posts:

EverybodysSnowyEyed · 14/02/2012 23:04

cross post - i started typing my first reply before i saw your last post

MrsDeeBee · 14/02/2012 23:04

Imps

'xpost' means cross-posted....2 posters said the same thing a different way !

It is very hard.

Original poster

Impsandelves · 14/02/2012 23:05

Derbys - good point about who NOT to have them! I wonder if we can include that in the will for the courts to consider.

OP posts:

MrsDeeBee · 14/02/2012 23:06

Oops....no wonder I get so confused here sometimes. It seems 'xpost' has a different meaning to what I thought !

EverybodysSnowyEyed · 14/02/2012 23:06

I remember watching a program about a couple who had adopted his late sisters kids. they were newlyweds when she died and had all these plans to travel etc. that all went out the window when they became parents of two bereaved girls - but they were fantastic and the little girls seemed so happy

mumblechum1 · 14/02/2012 23:06

Hi, I'm a willwriter (I have an advert over on Classified Small Business).

I often suggest that, after the appointment of the guardian clause, I write in something to the effect that the guardians should make all reasonable efforts to ensure regular direct and indirect contact between the children and both sides of the extended family.

To answer your original question, if a dispute arises, the court always has jurisdiction under the Children Act to make a residence order but will obviously take heed of the deceased parent's wishes so far as that doesn't impact negatively on the welfare of the children.

If you want any more info, please feel free to PM me or go to my advert.

EverybodysSnowyEyed · 14/02/2012 23:07

xpost MrsDeeBee! probably means both!

Original poster

Impsandelves · 14/02/2012 23:07

Thanks for explanation, has someone just started a similar thread or there's one out there already covering all this?

OP posts:

MrsDeeBee · 14/02/2012 23:07

Imps and Derbys

But is it legally binding ? Because if it isn't, it doesn't matter what you 'wish', or state as your preferred intentions.

That's scary.

MrsDeeBee · 14/02/2012 23:08

Everybodys !

AARRGGHHHH !!!!!!!

MrsDeeBee · 14/02/2012 23:09

Thanks for that info, mumble.

Very helpful.

Kayzr · 14/02/2012 23:10

What happens if you have children with different Dads? I need to do my will and I know I would either put my mum and stepdad down or my brother. But I doubt DP, XH and myself are likely to die at the same time and I don't want the DCs to be split up.

Original poster

Impsandelves · 14/02/2012 23:10

Thanks mumble, will look you up when we come to putting this into action.

OP posts:

mumblechum1 · 14/02/2012 23:13

Kayzr, in those circs, it would depend on whether your first child would naturally be better off with his father or your DP. If not, then you could appoint your DP as Guardian, but as mentioned previously, if your ex husband felt that your dc1 should live with him, he'd have to file a residence application and the court would decide what would be best.

It may well be that the court would prefer to keep the status quo, ie give your partner residence, with contact to your ex, rather than put your dc1 through any more upheaval.

Birdsgottafly · 14/02/2012 23:15

You need to realise that your deaths may not happen at the exact same time, one dead and one in hospital, if in an accident. So it is likely that the children will need to be accomodated immediately, before a will is read.

You need to discuss this with those that would be involved. under normal circumstances SS will look to place the children with well known trusted friends/family. Family are usually the first. You need to consider life carrying on as normal for the children, school etc.

Then in the event of the otheer parent dying, the long term plans, then need laying out, as would plans if one of you where seriously disabled and unable tocare for the children. The criteria for the Guardian is less strict than when SS look for foster care, but there is still an assessment procedure.

This is now governed by the Local Authority, under new laws that have been added to the Children Act, but they are ammended and wil lbe ammended yearly.

you need to state your reasons for choice and state your reasons why you would not want the children placed with others.

MrsDeeBee · 14/02/2012 23:15

Still scary though, as it sounds a bit 'hmmm'. The court will 'take heed' of the deceased parent's wishes so that it doesn't impact negatively on the children.

But if the court decides that your parents who never saw them and didn't have any relationship with them are the best thing at that time for your children, they can order the children to go to them ?

I don't like that.

Kayzr · 14/02/2012 23:18

I'd rather the boys didn't live with XH for a few reasons. Mainly because he struggles for just a weekend. But I thought that they would always be placed with a parent.

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