Who Will Look After Your Minor Children If You Die?
Who Will Look After Your Minor Children If You Die?
For parents of minor children, drawing up a Will involves more than deciding who should inherit your assets.
You also need to consider who should care for your children if you die, and what should happen to any inheritance you leave to them while they are still minors.
These are separate issues, and both deserve careful consideration when preparing your Will.
Can you nominate a guardian for your child in your Will?
If you are the sole guardian of your minor child, you can indicate in your Will who you would like to be appointed as your child’s guardian after your death.
However, nominating someone in your Will does not mean that the person automatically becomes the child’s legal guardian.
In South Africa, only the High Court can appoint a person, other than a natural guardian, as the legal guardian of a minor.
This makes it important to obtain appropriate legal advice when making provision for minor children in your Will.
What should you consider when choosing a guardian?
Choosing someone you trust is important, but there are practical considerations too.
Think about matters such as:
- whether the person is willing and able to take on the responsibility;
- the relationship between that person and your child;
- where the person lives;
- your child’s schooling and day-to-day needs;
- your child’s relationships with siblings and other family members; and
- whether your chosen person understands your wishes for your child’s care.
It is sensible to discuss your intentions with the person before naming them in your Will.
What happens to a minor child’s inheritance?
Guardianship of a child and management of that child’s inheritance are not necessarily the same thing.
A minor may inherit assets from your estate, but you need to consider how those assets should be administered until the child is old enough to manage them.
The Department of Justice specifically recommends that a person drafting a Will decide what should happen to a minor beneficiary’s inheritance, including whether it should be paid into a trust or the Guardian’s Fund.
What is a testamentary trust?
A testamentary trust is a trust created in terms of a valid Will and comes into operation following the death of the person who made the Will.
A Will can make provision for assets intended for minor beneficiaries to be administered through a testamentary trust.
The Will can set out how the trust is intended to operate and make provision for the management of the assets for the benefit of the beneficiaries.
Because the trust provisions form part of your estate planning, they should be drafted carefully to suit your particular circumstances.
What is the Guardian’s Fund?
The Guardian’s Fund is administered by the Master of the High Court.
Among other things, it holds and administers money paid to the Master on behalf of minors.
Where a minor’s inheritance is deposited into the Guardian’s Fund, the Master administers those funds. Money may, subject to the applicable requirements, be made available for certain needs of the minor.
The Department of Justice states that the purpose of the Guardian’s Fund is to protect funds belonging to minors and certain other persons.
Why should parents deal with these issues in their Wills?
Without proper planning, decisions about your children and the assets you leave them may not be dealt with in the way you would have preferred.
A properly drafted Will gives you the opportunity to record your wishes and make appropriate arrangements for the administration of an inheritance intended for your minor children.
It also allows you to consider the practical relationship between the person you would like to care for your children and the people who may be responsible for managing assets left for their benefit.
Do you have minor children?
If you have minor children, reviewing your Will is an important part of planning for their future.
DMF Attorneys assists with Wills and estate planning, including appropriate provision for minor beneficiaries.
