How can I find out if not so DH has made a will

[sosotiredagain123]

???

You can't, I'm afraid. Even if you knew he had one before, he could change it again without telling you.

So say i make a will and he has and we both die which one will be upheld with regards to who has the children

Your Will is personal to you - so if you die, your estate passes under your Will.

Your H could then leave his Will as it is, or could change it.

If you're worried he would change the Will and maybe cut the children out, then you need proper advice and maybe consider a Life Interest Trust.

thank you more worried his family will end up with the children

Depends who dies first I think

Depends who dies first surely?

Guardianship? They would probably look at the later Will (second to die), but if there is a major problem, then a Court could overturn and grant guardianship.

It depends who dies first as to how it goes even if there are just minutes in it I think. However I believe that more than just wills count with placement of children. I understand they are more an expression of preference as children are not part of your estate. I'm sure someone with more knowledge will be able to tell you for sure. Can you manage a consultation with a solicitor if it's really important?

I think I need to. Both DC do not want to even see DH's family so could not bear for them to end up with them

Is your DH keen for them to go to his family?

Approx what are their ages?

How old are they? Over a reasonable age the dc should get some say and your family/choice of guardian can challenge through the courts I believe. Best to get this stuff from someone who really knows for sure though, for your own peace of mind as much as anything.

They are 9 and 11. he wants them to go to his family.

OP, it is worth sorting but unless you have a worrying diagnosis, the chances are strong that both you and DH (and if not, one of you) will survive until the girls are old enough to make their wishes clear.

If one of you died and a little later the other did, the latter will would prevail.

If you die together and it can't be determined who died first, eg in a plane crash, there is a rule about who is deemed to have died first and I think it's the elder one, but am not 100%.

Children are not property. It is not the case that the latter will would prevail. You can appoint a guardian for your children in your will. Your ex can also appoint a guardian in his will. If you both die it will be up to the guardians to sort out where your children will live. If they cannot agree the courts will decide.

Prh, but if OP died first, DH would have the kids, and then if he died a few months or years later, wouldn't his will be the one considered?

By little later, I didn't mean a few hours, though I agree that wasn't clear!

No. If the OP has appointed a guardian that appointment would take effect when her ex died regardless of whether that was minutes or years later. The guardian could then try to convince the courts that it would not be in the children's best interests for them to go to her ex's family. It may be difficult for them to convince the courts but it isn't impossible.

You can nominate guardians in your will but this is only an expression of wish and is not legally binding. Only the courts can make a legally binding appointment.

Generally both parents should make wills and agree who the guardians should be so the expression of wish is the same in both wills.

If you and your husband each make a will appointing different guardians then if you die first your children will live with their father and on his death the guardians appointed in his will would take precedence. However, your family could challenge the appointment through the courts and your children's own wishes would be taken into account providing they are old enough to express an opinion ( usually over the age of 7).

Guardianship appointments should always be discussed with the intended guardians first and the following matters should be considered:
Do they have enough space to house the children? Are they expecting to move into your family home?
Would the children need to move schools?
Would they have the funds to raise the children - food, clothes, uni fees etc or would you make some kind of provision in the will to cover the guardians' costs?
Who would the guardians appoint in their stead if they were to die ?

Lots of other considerations but these are a starting point.

Prh that can't be rright. What you are saying is that the mother makes a will then passes away so dc are with father. Maybe 10 years later he dies but the mothers guardian gets the children regardless of the fathers wishes unless his chosen guardians go through court? Surely that can't be correct? Anything could have happened in that time!

We were advised not to put care of the children into our wills. The solicitor had seen too many cases of family feuds breaking out and people forgetting to alter their wills . Then having a total nightmare sorting it out.

the mothers guardian gets the children regardless of the fathers wishes

No that isn't what I'm saying at all. The fact that someone has been appointed guardian of the child does not necessarily mean the child will live with them and I am certainly not saying that the mother's appointment takes precedence over the father's. Both parents have the same right to appoint a guardian. If both parents appoint guardians the child will have two guardians both of whom will have PR, just as both parents can have PR. If the guardians cannot agree where the child should live it has to be determined by the courts, just as would happen if the parents disagreed. See Children Act 1989 S5.

Poshfrock appears to be confusing residence with guardianship. Saying where you want the child to live is an expression of wish but appointing a guardian is not. Any parent with PR has the right to appoint someone to be the child's guardian in the event of their death. That appointment does not need the intervention of the courts to make it binding. Again, see Children Act 1989 S5.

Thanks PRH, that makes it much clearer.

The OP is worried about where her children will live "so worried the children will end up with his family", so that is the issue I was addressing.

For most lay people such a decision would be termed "guardianship" whether semantically correct or not.