The news that the daughter of the late actor Paul Walker, best known for his role in the Fast & Furious movies, is to sue Porsche over the crash in which he died serves as a reminder of the importance of putting provisions in place to care for your children in the event of your death.
Meadow Walker, now aged 16, was a minor when her father died in November 2013. She was allegedly left his entire estate, rumoured to be worth some $25 million. It was further reported that Mr Walker’s father was named Executor in his Will and in this role petitioned to name his wife, Mr Walker’s mother, as Meadow’s primary guardian, apparently in accordance with the provisions of the late actor’s Will.
Putting a Will in place not only means you can ensure your estate is left to your preferred beneficiaries, but you can also appoint guardians to see to the day-to-day care of your children and make decisions about their upbringing and welfare.
Mr Walker was, however, survived by Meadow’s mother, his ex-partner, and in Scotland if you die survived by your child’s other parent, they will normally continue to have full responsibility for the children.
If children are orphaned and guardians have not been appointed in a parent’s Will, the courts will appoint guardians and of course won’t necessarily choose the parent’s preferred people for the role. It is therefore important to appoint your chosen guardians in a Will and discuss this with your intended appointees to check if they would be willing and able to so act.
The roles of a guardian and a trust
In Scotland, a 16 year old has full legal capacity and accordingly an inheritance can be taken from this age. For children aged between 16 and 18, the only continuing duty of their guardians is to provide direction and guidance until that child reaches the age of 18 – all other responsibilities end once the child turns 16.
This therefore leaves a child free to ignore any guidance and spend their inheritance as they wish upon reaching 16. It is for this reason that some consider it appropriate to set up a trust whereby this age of entitlement is postponed. When drafting a Will a parent can elect to put a trust in place for the benefit of their children and appoint someone or a number of people, often the same person/s appointed as guardian, to act as Trustee, manage the trust and therefore continue to look after the child’s finances until they attain an age of up to 25, at which point the capital can be paid over to the person.
One cannot help but wonder if Mr Walker made such provision or whether his daughter has now received her inheritance and is proceeding with what will likely be a lawsuit costing thousands on her own will.
Dying without a Will: legal rights
As the law currently stands in Scotland, if someone dies without a Will, their children together are entitled to “legal rights” amounting to a third or a half of the deceased’s moveable estate (essentially everything other than land and buildings) depending on whether there is a surviving spouse.
Legal rights can also be claimed if there is a Will, as an alternative to the provisions made in the Will or if in fact the Will leaves nothing to the children – you cannot disinherit your children.
Dying without a Will evidently risks children being left to inherit at 16 and with their guardian also unknown and at the will of the court. With more modern family units, further complications ensue. Step-children have no automatic right to benefit from a step-parent’s estate so a Will would be required to so provide.
Additionally where there is no Will, a surviving spouse is entitled to the first portion of the estate which can often exhaust the estate and leave children with nothing. This can be a particular problem where second marriages are involved.
Get in touch
There are numerous reasons to think about the unthinkable and how you would wish for your young children to be provided for in the untimely event of your death.
After all, when Paul Walker rather sensibly wrote his Will leaving his estate to his daughter and appointing a guardian (just in case) he surely thought it was simply a precaution which would never come to light.
The Private Client team at Harper Macleod are able to advise you on providing for your children and ensuring that their needs are cared for accordingly.