Should I Make a Will before Having a Baby?

26 April 2019

Having a valid Will is important if you have children under the age of 18. Without one, you would have no say over who should care for them in the event of your and their other parent’s death. You would also have no control over what they will inherit from you and who should look after this inheritance until they’re old enough to look after it for themselves.

For these and other reasons, it’s a good idea to make a Will if you are expecting a baby. In this article, we’ll explore these reasons in more depth.

Who Would Look after Your Baby if You Die?

It may be a hard prospect to think about, but in the event that you and your baby's other parent both die, who would you want to become their legal guardian? It's likely that you'll have someone in mind, maybe a friend or family member that you both trust.

It's important to know that if you don't make a Will, this decision will be taken out of your hands and you could have no control over who takes care of your baby after you've gone. What's more, it can take time for the authorities to place your child with their new guardian, meaning that there can be a period of uncertainty for them.

If you do make a Will, in this you can name the person (or people) that you choose as legal guardians of your baby in the event of your and the other parent's death. As your wishes are clearly stated, it should be far more straightforward for your chosen guardians to step in swiftly and take your child into their care.

You should speak to your intended guardians before you make your Will, so that they are aware of your wishes and to give them an opportunity to tell you if they aren't prepared to take on this role.

Paying for Your Baby's Care

Raising a child is expensive, and you may not want to place this financial burden on your child's guardian. In your Will, if you leave inheritance to a child under the age of 18 then this inheritance will automatically be held in a Trust, and will be looked after by those you have named as Trustees.

In order to cover the costs they incur while caring for your child, the guardian can ask the Trustees to make payments or reimburse these costs from the Trust. This can help to cover the cost of your child's everyday needs, such as childcare, food, clothing and transport, for example.

This means that you can choose a guardian based on how well you think they will care for your child, without needing to factor in their financial circumstances.

What Will Your Baby Inherit from You?

If you die without a valid Will in place, neither you nor your family will have any say over how your Estate is distributed. Instead, inheritance laws called the Rules of Intestacy will determine this for you.

The Rules of Intestacy place your relatives in order of priority, with your spouse or civil partner at the top of that list, followed by your children. One point that's important to note here is that unmarried partners are not recognised under these rules, so if you and your partner are not married, they would not be entitled to inherit anything from you if you die without a Will.

If you make a Will, then you can take back this control. You are able to name anyone you choose as a beneficiary of your Estate, meaning that you can ensure those left behind are provided for in the way that you would want.

There are different types of legacies (gifts) that you can include in your Will. These are:

  • Pecuniary legacy – a fixed sum of money (i.e. £10,000 to your daughter)
  • Specific legacy – a specific item, such as a family heirloom or some valuable jewellery
  • Residual legacy – a proportion of the remaining Estate (i.e. 50% to your daughter, 25% to your brother and 25% to your friend)

You can use any combination of the above when you make your Will, but bear in mind that pecuniary legacies will be paid before residual legacies. This means that if your Estate is smaller than you expect at the time of your death, it is the residual beneficiaries who are likely to lose out.

Who Will Look after Your Baby's Inheritance until they're 18?

Obviously, once you have set out what you want your baby to inherit from you, you want to know that this inheritance will be safe until they reach an age at which they can manage their own finances.

In your Will, you can include a Trust for this purpose, appointing Trustees to look after your child's inheritance until they reach 18 (or you can specify a higher age, if you wish).

Your Trustees will be legally obliged to act in the best interests of the Trust, and in the best interests of the beneficiaries. Then when your child reaches the specified age, their inheritance will become available to them.

Keeping Your Will Up to Date

Remember, as life progresses your Will can easily fall out of date, meaning that it's no longer an accurate reflection of your wishes. Whenever a significant life event occurs, such as the birth of another child, it's a good idea to review your Will to ensure that it's still fit for purpose.

It's also important to note that marriage automatically revokes any existing Will that you had in place. So if you get married and don't make a new Will, in the event of your death your Estate would be dealt with as though you didn't have a Will at all.

The only circumstances in which a Will won't become void on marriage is if it has been made 'in contemplation' of that marriage, using specific wording that references your intended spouse. At Co-op Legal Services, our Will Writers can provide advice and guidance on this and draft your Will in contemplation of your upcoming marriage.

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