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‘Who gets the kids if we die?’ Planning for the unthinkable

31 January 2017

12:23 PM

31 January 2017

12:23 PM

In Oscar-nominated movie Manchester by the Sea, Casey Affleck’s character Lee Chandler is shocked to discover he’s been named in his brother’s will as the guardian of his orphaned 16-year-old nephew Patrick.

The boy’s dead father didn’t discuss it beforehand, and Lee has no interest in taking on the mantle of replacement parent. This position is all the clearer for Affleck’s character when the lawyer explains that while the boy’s expenses will be covered from his brother’s estate, Lee will be required to uproot his life and relocate to discharge his guardianship duties, thus setting up the movie’s driving tension and ratcheting up Patrick’s pain.

Imagining the children we love being orphaned isn’t something any of us want to think about. But if families don’t face up to this possibility, they could leave their children in greater financial and emotional turmoil should the worst happen.

Teenage children might seem ready to look after themselves, but if any child is orphaned before they’re 18, they’ll need a legal guardian.

If no guardians are named in the deceased parents’ wills, then the courts could decide who gets to be guardian, meaning it may not be who the parents – or uncles, aunties and grandparents for that matter – would have wanted or expected to take them on.


Whether you’re thinking about who to choose, or considering whether to agree to being named as a legal guardian, it could make for some uncomfortable but necessary conversations.

Legal guardians are expected to provide a home and the day-to-day care of children, as well as oversee their education. So, parents need to consider how nearby the preferred guardians live. Also, do they have a big enough home, or would they need somewhere bigger to accommodate the children?

Conversely, would-be guardians should bear in mind that if the proceeds of the sale of a family home are used to buy a place big enough for any children plus you, it’s the children who are the ultimate owners.

‘Sometimes people can get slightly muddled here. The property would need to be held in trust for the children and the legal guardians wouldn’t have ownership. This means in the future, the children could sell up and leave you looking for another home. Everyone has to be clear about the implications of each scenario, and be happy about it,’ advises Tasoula Addison, Wills, Trusts and Probate Solicitor at Gorvins Solicitors.

More generally, it’s crucial to establish beforehand how parties expect the guardianship to be funded. What, if anything, do the guardians expect from your estate to finance the care of your children? How does this stack up with what you’d hoped to leave for your children’s longer-term future? Will that university fund end up being spent on everyday expenses if you choose one guardian over another?

‘Guardians and the executors and trustees of a will are separate functions and may not be the same people. This means guardians may have to apply for sums to pay for things that benefit the children, such as holidays or school fees. The guardians could be provided with a regular income for maintenance of the children, assuming the trust fund is big enough, but every estate and circumstance is different so nothing is a given,’ says Addison.

Lots of us are likely to feel uncomfortable discussing the potentially explosive combination of death, money and family relationships. But the alternatives to dodging the difficult questions do not bear thinking about.

Helen Monks Takhar is a freelance financial writer

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