I have recently acted for a single woman who had decided (quite admirably) to become a solo parent by choice, becoming pregnant with the use of an anonymous sperm donor. It occurred to me that there are many other parents out there who have become solo parents by choice, through donors or adoption, and those who have not become solo parents by choice but by circumstance, who would benefit from a reminder about their estate planning matters.
The principles listed in this article are not limited to solo parents, but the issues can be perhaps more prevalent for them, bearing in mind that where a baby is born through donor conception, or adopted by a solo parent, there will be no surviving parent with parental responsibility.
What should solo parents include in their wills?
There are a number of key points that need to be considered, as follows:-
- How the estate for your child will be structured through your will on your death.
References in this article to child apply for children too.
A guardian is a person that you appoint in your will (or in writing, after your will has been done) to look after your child if you die before your child reaches the age of 18. The guardian named is given parental responsibility for the child in the event of your death and will have the same legal rights and responsibilities as you.
You can appoint anyone you wish to be a guardian, as long as they are 18 or over by the time you die. This could be a family member, close friend or anyone else you feel is appropriate to look after your child in the event that you die before they are the age of 18. If you do not appoint a guardian to look after your child (and in the circumstances of my recent client, there will be no surviving parent with parental responsibility) the Court will then decide who to appoint as the guardian for your child. This could well end up being someone that you would not have chosen yourself, hence the reason it is important to set out in writing your wishes before you die. It is common for guardians to be appointed under the terms of a will, although the appointment need only be in writing, rather than under a testamentary document like your will.
Executors and trustees are appointed under the terms of your will and they will be the ones who administer your estate and then hold the assets in your estate as per the terms of your will and until your child reaches the age you have specified in the Will, unless an alternative structure is put in place. If you do not leave a will, although your estate will likely pass to your child in accordance with the intestacy provisions those rules also sets out who would be entitled to hold that money for your child. This may, again, not be someone of your choosing, such as estranged parents, siblings or wider family members. The key to picking your trustees is to trust them (the clue is in the title!) and it is therefore advisable to choose people who you would trust to manage that money appropriately and pass it over to your child as per your wishes. It can often (but not always) be appropriate to appoint the guardian (see above) to be one of the trustees, as they will be the one best placed to advise their co-trustees of the child’s financial needs.
Structure of your will
There are a number of ways you can structure your estate after your death, which can include your child inheriting on attaining a specified age i.e. 18, 21, 25 or even 30. There are usually powers for the trustees to apply money for the child’s benefit before then, such as for education and living expenses, with the bulk of the money retained until the age contingency is met.
The other alternative is for the estate to be held at the discretion of the trustees through a discretionary trust in your will, which makes it even more important that you name who the trustees would be.
If you die without leaving a will then your estate, again, is held under the intestacy provisions, which means the estate would be held in trust for your children in equal shares upon attaining the age of 18. In today’s world, 18 can be quite young to inherit, particularly large sums of money on the child’s 18th birthday, and you may therefore be more comfortable increasing the age upon which the child inherits under the terms of your will, with the trustees having power to advance the money to them before that age.
Expression of Wishes
In the case of where you have a child with an unknown donor parent, under current legislation, the identity of that donor remains private until the child reaches the age of 18, upon which they can seek to find out the identity of the donor. There are closed donations, where the donor opts for their identity to remain private forever, although this is not always the case, and depends on the election made by the donor before the baby is born. Likewise, if you have adopted children and they have regular contact with their foster parents and you would want that contact to continue, you could include this in a letter of wishes.
This may be something you have particular views about and you may therefore want to set out wishes about how and when (or even if) you would like the child to be given the opportunity to find out more about their biological heritage, although you cannot withhold their right to do so under current legislation. The letter of wishes is not legally binding upon your child, but is an indication of how you would like them to consider dealing with this, as and when the time arises.
Powers of Attorney
Historically, people have associated powers of attorney as something to be done as and when you get older, particularly useful when or if you lose capacity in the later years of your life. However, I am very much of the view that powers of attorney should be something that you do as soon as you acquire an asset, and if you already have an asset and are about to become a solo parent, this is as important as putting in place a will. The same applies if you are already a parent.
Powers of attorney allow the appointed attorneys to make decisions for you, should you become unable to do so, through illness or accident. If you have a child and there is no other parent who would be able to support that child financially if something were to happen to you medically or physically, there would be no one else with financial standing to be able to support that child’s needs. If, however, you had powers of attorney in place, those named attorneys could access your funds and ensure that there was no disruption caused to your child at what could already be an upsetting time for them. This would allow the continuous payments of your mortgage, utilities, nursery/school fees and general maintenance and upkeep of the child.
For more information about the two types of powers of attorney, please visit Lasting Power of Attorney | LPA Lawyers Tunbridge Wells Kent | Thomson Snell & Passmore (ts-p.co.uk).
As science continues to evolve, and particularly people having children later on in their life, there is a significant trend in people moving towards becoming solo parents by choice. Being a solo parent is demanding in and of itself and it is therefore easy to forget “life admin” such as putting in place your will and powers of attorney. As a parent, particularly a solo parent to be or an existing solo parent, you have a duty to your child to make sure you have put in place structures to ensure that their emotional, financial and mental well-being is taken care of in the event that you as the solo parent are unable to do so for whatever reason.
For more information about the matters discussed in this article, please contact a member of the Wills, Estates & Tax Planning team at firstname.lastname@example.org