May 2010
If your children are under the age of 18, it is very important that you consider who might take care of them in a worst case scenario. A child’s surviving parent is normally automatically guardian on the death of one parent (providing the surviving parent has “parental responsibility” under the Children Act 1989)
“Parental responsibility” means having the right to make important decisions about your child’s life- especially those of general welfare; medical issues and educational matters. There is an implied duty to care for and protect the child; in some cases this could be for a period of nearly eighteen years and the underlying rights and responsibilities are significant.
In broad terms, the child’s mother has parental responsibility irrespective of her marital status. The situation in regard to a father depends on marital status. A father will have automatic parental responsibility if he has been married to the mother at any time later than the date of conception.
An unmarried father can acquire parental responsibility by registering the child’s birth jointly with the mother at the time of birth, or by the mother signing a Parental Responsibility Agreement properly drawn up to satisfy the legal implications and associated parental rights and responsibilities. Alternatively, a father can apply to the Court for an order to be granted giving him parental responsibility.
It should be noted thus that an (unmarried) father does not automatically acquire parental responsibility; furthermore he does not acquire parental responsibility by virtue of the mother of their children dying. Therefore it would be both prudent and sensible for an unmarried mother, if she so desires, to appoint her partner (as the father of her child), to be the guardian of that child; she should also appoint another guardian in case both parties die at the same time or during the minority of the child.
When is a child entitled to inherit?
A minor (under the age of 18 years) cannot receive any legacy as they would be unable to provide a valid receipt. A cash legacy, therefore, cannot be paid until that age (or an age greater if so specified in the Will). A child’s legacy is held in trust: (two trustees by law); with the Trustees responsible for investing the funds in accordance with the terms of the Trustee Act 2000.
It is possible for the Trustees to use their statutory power to advance up to one half of the capital to the child, prior to the specified age; but there has to be very good reason for so doing. The income earned from the investments can be used towards the child’s maintenance or education (Section 31 Trustee Act 1925). In broad terms, even if the child is not entitled to capital, until an age greater than 18 years, generally the child would still have an immediate right to the income arising from the age of 18 years.
There are, invariably, always exceptions to the basic rules and professional guidance should be sought when there is any doubt as to the correct interpretation as mistakes usually prove to be costly!
Andrew Murdoch
(ACIB, AIFP, Dip PFS, TEP, Solicitor)
The content of this article is only intended as information and should not be considered as legal advice. Andrew Murdoch cannot be held liable for any loss caused by any act or omission as a result of information in this article.
