For parents, a will is not mainly about money. It is the document that says who will bring up your children if you cannot, who will look after their inheritance, and when they will receive it. Without one, the law answers those questions for you. Your children could inherit everything outright on their 18th birthday, an unmarried partner could receive nothing, and if both parents die, a court may have to decide who looks after them.
This article explains what happens in England and Wales if you die without a will, how to choose guardians and trustees, the choices you have about when your children inherit, and when your will needs to be reviewed.
If you die without a will
If you die without a valid will, your estate passes under the intestacy rules.
- If you are married or in a civil partnership and have children, your spouse or civil partner receives your personal possessions, the first £322,000 of your estate and half of the rest. Your children share the other half.
- If you are not married or in a civil partnership, your children share everything. An unmarried partner receives nothing, however long you lived together.
- Stepchildren receive nothing unless you adopted them.
- Children inherit at 18. Until then their share is held on trust by the administrators of the estate. On their 18th birthday each child is entitled to their share outright, whatever its size and however ready they are for it.
| Priya and Mark married | Priya and Mark not married | |
|---|---|---|
| Mark receives | Her possessions, plus £322,000 and half of the remaining £278,000: £461,000 in all | Nothing |
| The children receive | £139,000 between them | £600,000 between them |
| When the children get it | Outright at 18 | Outright at 18 |
| Mark's position | Provided for, though perhaps not as Priya would have chosen | He must bring up the children without any of Priya's money unless he makes a claim in court |
An unmarried partner who lived with the deceased for two years can claim under the Inheritance (Provision for Family and Dependants) Act 1975, but only for reasonable maintenance, and only through a court process with no guaranteed outcome. We explain the wider position of unmarried couples, and the importance of how the family home is owned, in Second Families, Unmarried Couples and the Family Home.
Choosing guardians
A guardian takes on parental responsibility for your children: where they live, how they are brought up, their schooling and their medical treatment. You appoint a guardian in writing, signed and dated, and the usual place to do it is your will.
When a guardian takes over
An appointment normally takes effect only when no parent with parental responsibility survives. In most families that means on the death of the second parent, and the surviving parent carries on bringing up the children alone.
There is one important exception. If you are separated and a court has ordered that the children live with you, a guardian you appoint can act straight away on your death, sharing parental responsibility with the other parent.
Who can appoint a guardian
Any parent with parental responsibility can appoint a guardian. Mothers have it automatically, and so do fathers who were married to, or in a civil partnership with, the mother when the child was born. An unmarried father has parental responsibility if he is named on the birth certificate (for births registered since 1 December 2003), or through a formal agreement with the mother or a court order. A father without parental responsibility cannot appoint a guardian.
Choosing the right people
- Ask them first. Bringing up someone else’s children is a huge commitment, and nobody can be forced to accept it.
- Think practically. Consider their age and health, where they live, whether they have children of their own, and whether they share your values.
- Name a substitute in case your first choice cannot act.
- Appointing a couple? Name each of them individually, and think about what should happen if they separate or one of them dies.
- Guardians need not manage the money. Many parents choose different people as trustees, so that the guardians are not also solely responsible for the funds paying for the children’s upkeep.
- Write a letter of wishes. It is not binding, but it can tell the guardians about your hopes for the children’s upbringing, education, religion and the people you want them to stay close to.
If you appoint your spouse or civil partner as a guardian and you later divorce, the appointment is automatically revoked unless your will says otherwise.
If there is no guardian
If both parents die without appointing a guardian, there is no automatic right for grandparents or other relatives to step in. Someone has to apply to the court, and if family members disagree, the court decides. If nobody suitable comes forward, the local authority may have to look after the children.
Executors and trustees
Your executors deal with your estate after your death: they collect your assets, pay your debts and tax, and distribute what is left. Where children are too young to inherit, the will passes their share to trustees, who look after it until the children reach the age you have chosen. The same people often do both jobs.
Choose at least two, and ideally people who are organised and sensible with money. Trustees must invest the fund carefully, keep accounts, file tax returns and treat each child fairly, sometimes for twenty years or more. A professional trustee alongside a family member can be a good balance.
- Your executors pass the children's share to the trustees
Once the estate has been administered.
- The trustees invest it
Keeping it safe, and growing it where they can.
- The trustees pay for what the children need
School costs, university, driving lessons or help for the guardians with day-to-day costs.
- Each child receives the rest
At the age set by your will, or when the trustees decide if it is a discretionary trust.
A modern will gives trustees wide powers to use both income and capital for the children’s maintenance, education and benefit before they reach that age.
When should your children inherit?
Under the intestacy rules, and under the simplest wills, children receive their inheritance outright at 18. Many parents would rather a child did not receive a large sum at that age. A will can choose a later age, such as 21 or 25, or give it in stages, for example a third at 21, a third at 25 and the rest at 30.
There are two main kinds of trust for children in a will.
| Inheritance at a fixed age | Discretionary trust | |
|---|---|---|
| What the will fixes | Each child's share and the age they receive it | A group of beneficiaries. The trustees decide who receives what, and when |
| Flexibility | Limited: each child receives their share at the set age | High: trustees can respond to each child's needs as they arise |
| Protection | Ends when the child inherits | Continues while money stays in the trust, including against a child's divorce or debts |
| Inheritance tax | Favourable treatment if the children inherit by 25, with at most a small charge between 18 and 25. A later age brings charges of up to 6% every ten years | Charges of up to 6% every ten years and when money is paid out |
| The extra allowance for the home | Usually available if the children inherit by 25 | Lost, unless the trustees pass the home to the children within two years of your death |
| Usually suits | Most families with young children | Families who want flexibility, larger estates, or a child who is vulnerable or has a disability |
The extra allowance for the home is the residence nil-rate band, worth up to £175,000 of inheritance tax relief for each parent when the home passes to children. Losing it through the way a will is drafted can cost a family up to £70,000 in tax for each parent. We explain how it works in Inheritance Tax: Allowances, Gifts and the Traps That Catch Families Out.
Children with a disability or who may be vulnerable
Leaving money outright to a child with a disability can affect their means-tested benefits and their care funding, and they may not be able to manage it. A discretionary trust, or a trust that qualifies for the special tax treatment for disabled people, can provide for them for life without those risks. The same approach can protect a child who struggles with money, addiction or a difficult relationship.
Things your will does not cover
Some of the most valuable things you leave may not pass under your will at all.
- Life insurance. Unless the policy is written in trust, the payout is paid into your estate. It can then be delayed until probate is granted, may add to the inheritance tax, and passes under your will, or under the intestacy rules if you have none. Putting the policy in trust means it can be paid quickly to the trustees you choose.
- Pensions. Most schemes pay death benefits at their discretion, guided by your nomination form. Keep your nominations up to date, and make sure they fit with your will. From April 2027 most pension funds will also count towards inheritance tax.
- A jointly owned home. If you own your home as joint tenants, it passes automatically to the other owner, whatever your will says.
Keeping your will up to date
A will speaks from the date of your death, not the date you signed it, so it needs to keep pace with your family.
- Marriage or civil partnership revokes an existing will, unless it was made with that marriage in mind. The Law Commission has recommended ending this rule, but for now it still applies.
- Divorce or dissolution does not revoke the will, but your former spouse is treated as if they had died before you, so they lose any gift or appointment under it unless the will says otherwise.
- Separation changes nothing. If you have separated but not divorced, your will still takes effect as written, and if you have no will your spouse remains entitled under the intestacy rules.
- A new child. A well-drafted will leaves your estate to “my children” so that a later child is included, but you should still check it, and consider the guardians.
- Changes in the people you chose. Guardians and trustees can move abroad, become ill, separate or fall out with the family.
- Your children growing up. The trust age and guardianship that suited toddlers may not suit teenagers.
Review your will every five years, and whenever your circumstances change. Small changes can be made by a codicil, but a new will is often clearer. Never write on, staple anything to or unpin a signed will: it can cast doubt on whether it is valid.
A checklist for parents
- Make a will, both of you, even if you have few assets now.
- Choose guardians, ask them first, and name a substitute.
- Choose trustees, at least two, who are good with money.
- Decide when your children should inherit, and which kind of trust suits your family.
- Write a letter of wishes for the guardians and trustees.
- Put life insurance in trust and update your pension nominations.
- Review your will after marriage, separation, divorce or a new child, and at least every five years.
How we can help
Thirsk Winton LLP’s private client team prepares wills for parents, including guardianship appointments and trusts for children, and advises on life insurance trusts, pension nominations and inheritance tax. We will take you through the choices, explain the tax effect of each, and make sure your will works with everything that passes outside it.
For advice, please contact Salma Butt on 020 8505 4777 or at sbutt@thirskwinton.co.uk.
This article is for general information only and reflects the law at the date of publication. It is not legal advice and should not be relied on as such. For advice on your own circumstances please contact us.