If you are thinking of writing a will with children, there are three questions you should think about.
1. At what age do you want your children to access the money?
In Scotland the default age for children to access money left to them in a will is 16. There may be several reasons why you may not want your child to access their inheritance at 16, and so a trust can be used to increase the age when young beneficiaries can access money.
If you decide that an age between 18 to 21 is more suitable for your child to inherit, then simple trust provisions can be included in your will for no additional cost. If you would rather have your children inherit over the age of 21, fuller trust provisions must be included in your will which has an additional cost.
2. Who do you want to manage your money for your children?
As children cannot inherit until they are at least 16 years old, it is crucial to consider who you would want to manage that money until your child is old enough to access it.
Trust provisions can be included in wills with children whereby trustees are appointed to manage the money left to the child. These trustees can be granted a variety of powers in the will to make decisions on the use of the funds. The trustees can use the money for a wide variety of reasons including to pay for school or university costs, driving lessons, maintenance costs, holidays, or a deposit for a house.
3. Who do you want to look after your children if you die before they are 16?
Both parents are automatically guardians to their children, and so do not need to be appointed in the will. However, you may want to appoint a backup guardian when writing a will with children to cover the unlikely event both parents were to die before the child is 16. A guardian can be the same person who is managing your children's money but does not necessarily need to be.
Appointing a guardian in a will gives the person appointed full parental rights and responsibilities until the child reaches the age of 16. Once the appointment of a guardian has taken place, and been accepted, it can only be ended if the guardian dies or by application to the court. It is therefore worthwhile talking to any prospective guardians before naming them in your will.
4. Adopted Children
We are often asked if you need to do anything differently if you are writing a will for adopted children. In Scotland adopted children are treated in the same way as biological children. All the considerations for writing wills with children are the same regardless of whether a child is adopted or not.
5. Legal Rights
The last thing to think about is legal rights. Legal rights are distinctive to Scots law. Legal rights are in place so that no child can be disinherited. They are available both where a parent dies with or without a will in place. Legal rights allow the children to claim a proportion of their parent's moveable estate (all assets except land and buildings), regardless of the terms of the will. The amount depends on whether or not their parent is survived by a spouse or civil partner. Children need to decide if they want to claim their legal rights or discharge them. If children have been provided for in the will, they need to decide whether they want to claim their legal rights or follow the terms of the will – they can't do both.
If you are concerned about legal rights, we are happy to speak to you about what that means for you when you make your will.
Appointing a power of attorney or making a will in Scotland is very easy to do using Wills by Brodies. Taking you step by step through the process, Wills by Brodies lets you start to write a Scottish will or appoint your power of attorney online with costs starting at £180.