Executors

Your Executors are the people who administer your estate and carry out the instructions in your Will.  It is important to choose someone who will be able to deal with your estate in a businesslike way.

Members of your family will often be able to undertake the task, but you may feel that you would like them to have some professional help.  Have you thought about the advantages of appointing your solicitors as your Executors?  We at Ferguson Bricknell have been administering estates for many years, and our experience is available to ensure that your affairs are wound up as smoothly and expeditiously as possible.  We always liaise closely with your family or other beneficiaries. return to top

Guardians

When both parents of children under eighteen die a guardian must be appointed.  The guardian stands in the position of the child's parents and assumes all the parents' legal duties and rights in respect of the child.  The guardian becomes responsible for seeing that the child is housed, fed and clothed, that the child is educated and receives medical treatment when necessary.  The guardian is responsible for day to day care and control of the child.

In most cases the child will live with the guardian who will provide a new family for the child.  We recommend that your guardians should be of a similar age to yourselves and have similar views on bringing up children.  It is most important that you discuss matters with your proposed guardians before you include their names in your Will.  This is a very important job and the proposed guardians should think carefully before agreeing to act.  Usually a relative is asked to act as guardian but there is no reason why you should not ask a close friend.  We suggest that you appoint a married couple, and you may wish to consider reserve guardians just in case your first choice are unable to act.

If the parents are not married, only the mother can appoint a guardian by Will unless the father has obtained parental responsibility under the Children Act 1989. He can do this either by agreement with the mother or by court order. If you are in any doubt about your position we can advise you. return to top

Legacies

You may wish to leave a sum of money to someone.  This is called a legacy.  Bear in mind that what seems like a generous sum now may be worth little in ten or twenty years time.  If you include legacies in your Will it is sensible to review your Will every five years or so. return to top

Specific Bequests

You may wish to leave specific things (e.g. a picture or a piece of jewellery) to a particular person.  This is called a specific bequest.  It is important to describe the object clearly so that there is no dispute about which item you meant. return to top

Residue

Everything you own which you have not given away as a legacy or as a specific bequest is the residue of your estate.  Usually any debts outstanding at the date of your death, your funeral expenses and any inheritance tax due on your estate are paid out of residue.  You must decide who is to get what is left.  You can divide it among as many people as you wish, and in whatever proportions you choose; there is no need for it to be shared equally. return to top

Provisions for young children

If you die leaving children under eighteen you must ensure that they are properly provided for in your Will.  You cannot expect your guardians to pay for your children out of their own pockets, although it is only fair to warn your guardians that they may have to put their hands in their pockets at some stage, particularly if your children are very young and your only asset is a house of average value.  It is for this reason that it is usually better to appoint a relative, since your family will feel they have a moral obligation to your children even if the money runs out.

The guardians will be entitled to claim child benefit for your children, but that falls far short of the cost of bringing up children, as you will be aware.  You must therefore make sure that your estate is made available for the benefit of your children.

The first and obvious point to make is that you cannot hand over a share of your estate to your young children.  Apart from the fact that they would be unable to handle the money properly, the law does not allow them to have large sums of money or property until they reach eighteen.  Your estate therefore has to be looked after by trustees who hold the money in trust for the children until they reach eighteen or any older age which you specify.  This does not mean that your money is locked away until the children reach eighteen.  The trustees have power to invest your money (after taking professional advice) and to use the income and capital for the upbringing of your children.

This means that the guardians can receive a regular income from the trust fund.  If your children are very young it is possible that all the money in the trust fund will have been used up by the time they reach eighteen, but remember that the object is to provide for your children's upbringing, not to provide a large nest-egg for them.

How is your money to be divided among your children?  Most people think it should be divided equally, but in fact this does not always produce the fairest result.  Suppose you have three children aged 13, 9 and 5.  The youngest will be dependent on your guardians for eight years longer than the oldest.  If your estate is divided equally the oldest will possibly inherit a substantial sum of money at 18 while the youngest runs out of money at about 14 leaving your guardians in financial difficulties.  The solution which we recommend is to create a discretionary trust in your Will.

Your trustees are instructed to use your money for the benefit of your children, but it is left to your trustees to decide how much is spent on each child.  They do not have to make sure that each child receives exactly the same amount.  In the example given above, when the eldest child leaves home the trustees can divert money to the other two.

But, you may say, how can this be fair?  The youngest child will have received much more money than the oldest.

If you only look at the period after your death that is correct.  But remember, in the above example, that the oldest child has had the benefit of your money during your lifetime for eight years before the youngest was born.  If you look at the childhood years of each child, both before and after your death, each child will have received roughly the same amount from you, adjusted for inflation.

When should the children be entitled to receive any remaining capital?  For legal reasons 18 is the youngest age you can stipulate, and for tax reasons 25 is the oldest.  Many people think that eighteen is too young to receive a large sum of money and prefer the traditional age of twenty-one.  Whatever the age you specify, under a discretionary trust the trustees can always release capital to your children before they reach that age, for example to put down a deposit on a house.

Finally, who should be your trustees?  Your Executors become the first trustees and they can appoint additional or replacement trustees.  We do not advise that the guardians are the sole trustees; it places too heavy a burden of responsibility on them and can make them vulnerable to accusations from your children that they have used your money wrongly.  At least one independent trustee can give your guardians peace of mind.  Ferguson Bricknell & Co have many years experience in administering trusts and that experience can be made available for the benefit of your children by appointing us as one of your Executors and trustees. return to top

What if all the family die at the same time?

Especially while your children are young and living with you, you should not ignore the possibility of you and all your children being killed in the same accident.  Sadly, road accidents are all too common.  If this tragedy did occur it is important to stipulate who is to get your estate - it might be other relatives or you might leave it to charity. return to top

Charities

It is always worth considering leaving part of your estate to charity; there are many worthwhile causes to support and as a bonus all gifts to charity are exempt from Inheritance Tax.  The partners of Ferguson Bricknell actively support a number of charities and we have information to assist you in choosing a charity. return to top

Administrative Provisions

It is usual to include a number of administrative clauses in a Will, particularly if a trust for young children is likely to arise.  These enable the executors to administer the trust fund more efficiently.  We will advise you on these when you instruct us to draft your Will. return to top

Funeral Arrangements

You can include funeral directions in your Will.  Please bear in mind that funeral directions are not legally binding and it is sensible to make sure that someone in the family knows your wishes; often the Will is not looked at until after the funeral arrangements have been made. return to top