How is money paid to the Guardians of my Will to take care of my children?

Share this article...

Money is paid to your guardians by the executors of your will. 

One of the most important things a will does is appoint guardians of our ‘minor’ children – ie children under the age of 18. Here, we take a look at some of the basic responsibilities of guardians, and critically, how money is paid to them from your will so that they are not out of pocket should the need ever arise for them take care of your children.

How do I appoint Guardians in my Will?

Guardians are appointed under your will with a simple clause which simply identifies them clearly with full names and address.

What does a Guardian do in a Will?

As a matter of law, your guardian(s) take the legal parental responsibility that you had yourself as natural or adoptive parents.

When does a Guardian appointment take effect?

A guardian appointment only takes effect in the event of BOTH legal/natural parents dying. If one has survived, they (the surviving parent) retain all parental rights.

When does a Guardianship end?

Your guardian’s legal responsibility ends when your children each reach 18 years of age. As with ‘normal’ parenting, you would of course hope that they continue to play an active and constructive role in your children’s adult life (though they would do so without any legal responsibility).

What does a Guardian do?

A guardian does all of those things you would otherwise have done as a parent. So, they will (of course) provide them with a home, feed and cloth them, take them on holiday, decide what school they go to, etc etc etc.

Do you get paid for being a Guardian?

No, and yes! A guardian can be paid any/all out of pocket expenses that they would not otherwise have incurred had they not become guardian(s) to your children. They cannot however be paid for their time, or profit from it?

The roles of guardian and executor are very different, and separate. 

How do my Guardians get paid from my Will?

So, there are two main ways that your guardians will receive money to cover the cost of parenting your children. They are:-

  • CHILDREN’S INHERITANCE – ahead of your children inheriting from your will (at 18 or whatever age you set), that ‘pot’ of money can be made available (in part at least) for their ‘education and maintenance’. What funds are paid to the guardians is at the discretion of the Executors/Trustees. For this reason it is a good idea to separate out the role of guardian as against executor/trustee to avoid any conflict of interest
  • LEGACY TO GUARDIAN – some people decide they would like to make a gesture in their will direct to the guardians as a ‘thank you’. This would ordinarily be a straightforward legacy

payable to the guardians and they can then do with that money as they please. Such gifts are sometimes made ‘contingent’ upon the guardian actually taking responsibility for the children (ie accepting the guardian appointment).

What is the difference between an Executor and Guardian?

Think of the executor/trustee as the keeper of money. Their job is to look after your children’s money until they reach the age of entitlement set in your will (18 or older). And, they are obliged to pay money to your Guardians as necessary for the ‘education and maintenance’ of the children (NOT so as to profit the guardians).

What duties do my Executors/Trustees have to look after my children’s Inheritance?

In board terms, that responsibility extends to investing the money and maximising its potential so that on the day of entitlement the money has performed well financially. Critically, the executor/trustee is personally liable if they make poor investment choices or otherwise don’t maximise the inheritance of the children. This is a critical point.

Why separate the roles of Guardians and Executor/Trustee in my will?

A guardian’s role is to look after your children day to day. And, whilst they are permitted to receive money from the children’s inheritance, remember that they would be personally liable if they fail to look after the financial interests of the children and pay (to themselves) too much money for education and maintenance (if they were both guardian and executor/trustee).

This creates (in my view) a very difficult conflict of interest. And for that reason, it is a good idea to consider separating the roles of guardian and executor/trustee. Otherwise, you may for example leave your guardians reluctant to pay to themselves money which they are quite legitimately entitled to do (for fear of reducing the children’s inheritance).

When is money paid to the Guardians of my Will?

You would expect your executors/trustees to make payments to the guardians either regularly for normal ongoing living expenses, and/or ad hoc for special events (holidays, birthdays, etc).

Helping Guardians with their responsibilities?

If you are a guardian and you are at all unsure of your legal responsibilities, or you are concerned about what money is or is not being made available to you from the estate of the deceased parents, then do get in touch with our team of expert wills and probate lawyers.

Share this article...