When you make your Will, you must consider your children and their needs. Children’s needs change over time, so it is crucial to address these when you draw up or review your Will.

In this article, we will address the key considerations you face regarding your children when you make or review your Will.

Appointing a guardian

If your children are minors (in Scotland, under the age of 16 years), you must appoint a guardian should you and the other parent die. 

Once you decide who you would like to appoint, speak to them to ensure they are prepared to accept the appointment. If they agree, you can name them as guardians in your Will.

You must also make financial provisions for your children while the guardian looks after them. Ensure your Will allows the guardian to draw down sufficient funds to cover any expenditure on your children’s upbringing.

Holding a child’s share in trust

You can delay your children's inheritance until they reach a specific age. If you make financial provisions for your children, if they are minors, the funds you allocate must be held in trust until they reach the age of majority. In Scotland, that means 16 years of age. You can decide whether you wish them to receive their inheritance when they reach that age. It is not uncommon for 

Wills to contain provisions that prevent children from receiving their inheritance until the ages of 18, 21, or even 25 or older. 

However, consider allowing your children to draw on some of their share before reaching the age you specify for purposes such as furthering their studies, going on holiday or helping with their upbringing.

Catering for disabled children

You must make provision if you have a disabled child. If both parents die, any funds you have allocated for their use must be held for their benefit. 

You will also wish to appoint a guardian to look after them. In doing so, you must empower the guardian to draw on the funds held for the child to help meet their needs.

Children from prior relationships

Modern or blended families are no longer unusual in Scotland. However, if you leave your entire estate to your current spouse or partner when they die, your children from an earlier relationship have no automatic entitlement to share in that spouse or partner's estate.

If you own the family home jointly with your current spouse or partner, consider leaving your share in the house in liferent for your spouse or partner with your children, who will inherit it once your spouse or partner dies. 

Legal Rights

Children are entitled to Legal Rights in the estate of their parent. This is an automatic entitlement, and they do not need to lodge a claim. Legal Rights entitle children to a share in their parent's moveable estate (anything that is not land or buildings). The proportion of the estate depends on whether the deceased parent had a spouse or civil partner. The share the children would receive is:

• A one-half share of the movable estate if the deceased parent does not have a spouse or civil partner
• A one-third share of the moveable estate if the deceased parent has a spouse or civil partner.

Children must share the proportion to which they are entitled equally amongst them. Also, if any children are minors, their share must be held in trust for them until they reach the age of majority.

Inheritance Tax considerations

When drawing up your Will, if your estate is likely to exceed the Inheritance Tax threshold, consider distributing it so that you can use up your tax-free allowance by leaving some of it to your children, with the balance going to your spouse or civil partner.

You might also consider making lifetime gifts to your children and accelerating their inheritance. If you survive for seven years or more, the gift will probably no longer be subject to inheritance tax.

Let Paris Steele help you when you want to make provisions for your children in your Will

It might not be as straightforward as you think when you come to make provisions for your children in your Will. Seek professional legal advice on how your Will can be structured to balance your needs and those of your children.

For many years, the solicitors at Paris Steele have been advising clients in North Berwick and Dunbar, throughout East Lothian, and across Scotland on preparing their Wills. If you would like to make or review your Will, please get in touch with us. We’d be delighted to help.