How to Include Children in a Will

Including children in your will is one of the most important aspects of estate planning for parents and guardians in England and Wales. Clear provision ensures that your children benefit from your estate according to your wishes and that their financial future is protected, particularly if they are minors. This guide explains how children may be included in a will, legal considerations when making these provisions, options for trusts, the role of guardians and trustees, and practical steps to draft a will that reflects your intentions.

Why Address Children in Your Will

A will is a legal document that sets out how your estate is distributed after your death. Without a valid will, the intestacy rules apply, which may not reflect your preferences and can result in outcomes you did not intend. Under intestacy in England and Wales, surviving children are entitled to a share of the estate, but the distribution is automatic and rigid. By making a will, you control how and when your children receive assets, appoint guardians for minors and specify trustees to manage assets on their behalf.

1. Children as Beneficiaries in a Will

1.1 Who Qualifies as a Child

In the context of wills in England and Wales, children typically include:

• Biological or adopted children
• Children born through assisted reproduction where legal parentage has been established

Step‑children are not automatically treated as children for inheritance purposes unless they are legally adopted or expressly included by name in the will. If step‑children are not included and are financially dependent, they may be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

1.2 Testamentary Freedom and Children

In England and Wales, the legal principle of testamentary freedom means you can choose to leave your estate to anyone, including your children, or even exclude them if you wish, provided the will is valid. There is no forced heirship rule that automatically entitles children to inherit. However, excluding children entirely may increase the risk of a claim under the 1975 Act if they can show reasonable financial need.

2. Making Specific and Residuary Gifts to Children

2.1 Specific Gifts

A specific gift is a distinct item or sum of money left to a named child. For example, “I leave £20,000 to my daughter, Emma Smith.” Specific gifts should be clearly described to avoid ambiguity.

2.2 Residuary Gifts

A residuary gift allocates a share of the residue of the estate - the part remaining after debts, expenses and any specific gifts are settled. Many parents leave the residue to their children in equal shares, or to a class of beneficiaries defined as “my children.” Careful wording ensures any future children born after the will is made are included.

3. Trusts and Children Under 18

Children under 18 lack legal capacity to hold assets directly. Most wills that provide for minor children will incorporate a trust mechanism to manage the inheritance until the children reach adulthood.

3.1 Bare Trusts

A bare trust (sometimes called a simple trust) is a common structure for minor beneficiaries. Legal title to the assets is held by trustees (often the executors), but the child has an absolute entitlement to the assets, usually accessible at the age of 18. Trustees hold and manage the assets solely on behalf of the child and cannot use them for other purposes.

If the child dies before 18, assets held in a bare trust will form part of the child's estate and pass under intestacy or a separate will for that child, which may be unintended.

3.2 Bereaved Minor Trusts and Age‑Limit Trusts

Under wills and intestacy, a bereaved minor trust automatically arises where assets are left to a child under 18. Trustees hold the inheritance until the child turns 18. Alternatively, you can set a trust that delays access until an age beyond 18 (such as 25), if you specify this in your will. These 18–25 trusts allow greater control over when assets are distributed.

3.3 Discretionary Trusts

A discretionary trust gives trustees flexibility to decide when and how much of the trust's assets are paid to your children or other beneficiaries. Trustees may consider needs such as education, health or maintenance. While more complex, discretionary trusts can protect assets from being accessed too early or used in ways you do not intend.

4. Guardianship for Minor Children

A will can be used to nominate guardians for minor children - adults you trust to look after them if both parents die before the children reach adulthood. Without such nominations, the family courts may decide who is best placed to care for the children. A guardian nomination in your will expresses your preference, which the courts will consider seriously when making a decision.

5. Practical Steps to Include Children in Your Will

5.1 Drafting the Will

Work with a solicitor or qualified will writer to draft a will that clearly identifies your children, sets out what they should inherit, and includes any trust provisions. Precise drafting reduces the risk of ambiguity and legal disputes.

5.2 Naming Trustees and Guardians

Identify trustees who will manage any trusts established for minor beneficiaries, and guardians for childcare responsibilities. Consider naming more than one trustee to reduce administrative issues if one is unable to act.

5.3 Reviewing and Updating

Family circumstances change over time. Marriage, divorce, births and changes in financial position may require updates to your will. Regular reviews ensure that your testamentary intentions remain up to date and legally effective.

5.4 Addressing Tax Implications

Assets left to children are part of the estate for inheritance tax (IHT) purposes. Consider available nil‑rate bands and other reliefs to mitigate potential IHT liabilities affecting the value of the inheritance received by your children.

6. Potential Risks and Legal Challenges

6.1 Claims Under the Inheritance (Provision for Family and Dependants) Act 1975

Even if you include children in your will, disputes can arise. Under the Inheritance (Provision for Family and Dependants) Act 1975, children (including adult children) can apply to the court for reasonable financial provision if the will does not make adequate provision for them. This may occur if a child is left out or given an insignificant share relative to need. Courts assess factors such as financial resources, obligations, size of the estate and the standard of living.

6.2 Step‑Children and Other Dependants

As noted above, step‑children are not automatically entitled to inherit unless named in the will. Ensure that wording is clear if you intend for them to benefit, and recognise that they may seek reasonable provision under the 1975 Act if financially maintained by you.

7. Common Questions from our Readers

Can children under 18 inherit directly?
Yes, but assets left to children under 18 must be held in trust by trustees until they attain majority (18) or another age you specify in your will.

Do I have to leave equal shares to each child?
No. You can divide your estate unequally between children, or even exclude one or more entirely. However, unequal treatment may increase the risk of a claim under the 1975 Act.

Are adopted children treated the same as biological children?
Yes. Adopted children are legally treated the same as biological children and inherit accordingly unless you state otherwise in your will.

Conclusion

Including children in your will requires careful consideration of how and when they will receive their inheritance, particularly if they are minors. You can provide for children directly or through trusts, appoint trustees to manage assets, and nominate guardians to care for young children. Clear drafting, professional advice and regular review help ensure your testamentary intentions are effective and legally enforceable. By taking these steps, you can help secure your children's financial future and minimise potential disputes after your death.