Becoming a new parent is considered by many to be one of the most exciting and rewarding, life changing events you can experience. It can be both magical and challenging in equal measure. Each couple’s or individual’s journey is unique and that is why the superior service we offer at BTO is bespoke.
We completely understand that in between hospital appointments, decorating the nursery, juggling work and sharing joy with family and friends the last thing you could possibly wish to think about is what might happen if you become seriously ill or die before your children grow up.
Future planning (estate planning) is essential to protect your family and give you peace of mind in this unpredictable world. BTO therefore recommend that every new parent creates a Will (to review and update every 3-5 years) and Power of Attorney. Having both legal documents in place allows you to safeguard your children’s future and ensures they are cared for and financially provided for in accordance with your wishes should the unthinkable happen. BTO are here for you all the way and our warm, friendly and professional solicitors would like to invite you in for a chat to discuss your options.
What is a Will?
Your Will is a legal document that sets out what should happen to your money, property and possessions when you die (including access to your social media accounts, funeral arrangements etc).
Making a Will with the guidance and support of an experienced solicitor ensures that everyone you love and care about is covered. You can also donate things to important causes close to your heart. BTO will take time to meet you, listen to your wishes and tailor your Will to suit the modern needs of your family. Once signed, a Will is legally binding – guaranteeing you all peace of mind.
What happens if I die without a Will?
If you die without making a Will (‘intestate’), the legislation will dictate how your estate (money, property and possessions) is to be distributed. It is often a very time consuming, stressful and impersonal process and it may not be done in accordance with your wishes. This route can often be very painful and confusing for those left behind during what is already a sensitive time. It can add another layer of complexity which you can easily avoid by making a Will and updating it every so often.
How does ‘intestacy’ affect modern families and cohabiting couples?
In Scotland, the law of intestate succession (dying without a Will) is largely based on traditional family arrangements reflecting societal norms when the legislation was implemented in 1964 and, in England and Wales, the legislation dates back to 1925. It is unlikely the legislation reflects the wishes of modern families and relationships. For example, there is no automatic provision for unmarried couples.
A cohabitant would instead need to raise an often complex and costly court action to make a claim on their late partner’s estate, with no guarantee of success. That is why you need to seek legal advice at your earliest convenience and put plans in place to avoid this uncertainty when starting a modern family.
It is thought that over half of all new babies are now born to parents who are not married so having a Will in place to ensure that your assets would pass to your partner to help them with the costs of raising your children is imperative.
One should also ensure that any Will already in place is updated to reflect recent changes in the family.
Surrogacy and assisted conception – legal services for modern families explained.
If you are on the pathway to parenthood through surrogacy or assisted conception at the time of your death, it is possible that your own parents and/or siblings would inherit your assets instead of your partner if you are not married or in a civil partnership at the time. Your child would usually inherit your estate, but it may be that the point of granting a parental order has not been reached.
Similarly, if you are a single intended parent through surrogacy, your children may not inherit from your estate prior to the making of a parental order without your Will making specific provision for them.
Appointing legal guardians for your children
In the unfortunate event that both you and your partner died, for example in an accident, one of the key provisions that you can make in your Will is to nominate guardians who should look after your children.
This allows you to choose the people that you trust most to bring your children up as you would have wished to yourself, with all the parental rights and responsibilities that you had.
If parents die without making this nomination, decisions about who should be responsible for the children will lie with the Local Authority in the first instance, who may make different choices than you would have envisaged. Therefore, it is recommended that you take a moment to consider your wishes.
Inheritance planning for your children
Your Will can also include trust provisions to ensure that your children’s inheritance is managed in their best interests by Trustees that you have chosen. This could be their guardian, another relative or an independent professional Trustee, such as a solicitor. We can advise you on all your options.
They have many powers to apply the trust fund for things that the children need as they grow up or to invest it so that it grows in value until they are adults. While the default age to inherit in Scotland is 16, many parents believe that this is too young to sensibly manage a large amount of money, so you can choose for their inheritance to be ringfenced until they attain a suitable age.
Our solicitors will work closely with you to fully understand the needs of your family and we will advise you on the best way to frame your Will to give you peace of mind. BTO will ensure that you have put everything in place to give your children stability and security if and when you are no longer here.
The benefits of having a Power of Attorney
A common misconception is that Power of Attorney is only important for elderly people, but anyone of any age can lose the ability to manage their own finances or welfare through a sudden illness or accident, either on a temporary or a permanent basis. The effect of a parent being unwell or disabled can be unsettling and worrying for children, but this can be mitigated when their parent has appointed another trustworthy, responsible adult to look after their best interests. This is often their other parent or a close relative.
The financial powers available to your Attorney can include the ability to pay for adaptations to allow you to continue living at home with your children, or to move to a more suitable home or a residential care setting if this was the best place for you to be cared for.
They can claim benefits and financial support on your behalf to alleviate financial hardship on the family or fund carers to help ease the load for your partner, children and family. If you intend to save for your children’s future or pay for their schooling or hobbies now, your Attorney can make sure that this continues if you are not able to make these arrangements yourself.
Perhaps the greatest comfort to your children and family comes by appointing an Attorney whom you trust and who knows you well to look after your welfare if you were no longer able to make these decisions. They have the ability to make sure that you can continue to do the things you enjoy, for example spending time at activities with your children or going on family holidays as well as liaising with medical practitioners to access necessary treatment and support.
What happens if I become ill or lose capacity without a Power of Attorney?
If you unfortunately lose capacity without a Power of Attorney in place, your relatives or the Local Authority would have to apply to the court for a Guardianship Order, which is a very lengthy process that can cause delays in making decisions about arrangements for your care during what is already a very stressful and emotional time. Getting a Power of Attorney in place is therefore recommended whilst you still can make your own decisions and think for yourself.
Future planning can be difficult to contemplate, and they are not always nice discussions to have, particularly when you are still a young family, but at BTO, we have your best interests at heart and we take a compassionate and practical approach to guiding you through the protection that Power of Attorney can offer you and your loved ones.
Please reach out to BTO and let us help you get your legal affairs organised
We recommend that all soon-to-be parents get in touch with BTO at an early stage to discuss your needs so that we can keep your affairs up to date at every stage of your family’s journey. From preparing to welcome new babies to managing assistance with university fees or helping your children onto the property ladder, BTO are with you all the way.
Contact our Wills, Estates and Succession Planning team:
Euan Fleming, Partner – EKF@bto.co.uk or call 0131 222 2939
Katie Armstrong, Solicitor – KAR@bto.co.uk or call 0141 221 8012
