The only thing more precious than watching the ones you love enjoy life, is life itself.
Many of us think that our family will automatically be looked after financially when we are gone. Unfortunately, this is not true. As a parent, your life changes from the moment your first child is born and you would do anything to protect them. Considering your end-of-life and what happens to your children when you are gone can be overwhelming but an essential part of planning for the future.
The only way to ensure our families are taken care of when we are no longer here is by preparing a Will.
There are a number of steps you can take as a part of your succession planning to ensure that your children are adequately provided for from the perspective of your own peace of mind and in the eyes of the law. This includes appointing a Guardian and adequately providing for your children in your Will.
Further reading: 6 Things that can go wrong if you don’t write a will.
Appointing a Guardian
Choosing a Guardian to look after your children under the age of 18 years can be one of the most challenging decisions you will make. However, there are numerous benefits to making a Guardianship provision within your Will. Not only will it reduce the number of family disputes and legal costs involved in contesting a Will, you will know exactly who will be looking after your children after you are gone.
Dying Intestate
If you die without a Will, it means you have died intestate. Different states have different intestacy laws that dictate where your Estate is distributed and who will look after your children. Most often than not, in the event of a death of one parent, the surviving parent will take legal guardianship of the child, unless there are circumstances to reflect that this is not in the best interest of the child such domestic violence or substance abuse. Otherwise if both parents pass away, any person with sufficient interest (i.e. grandparents, aunties or uncles) can apply to be a guardian.
Role of a Guardian
A Guardian has the following responsibilities for your children who are under 18 years old:
- Day-to-day care and control of the children;
- Making decisions about the children’s upbringing
- Financial provision
- Influencing moral obligations in the children’s upbringing i.e family traditions, religion & cultural beliefs
Things to consider when appointing a Guardian
It is important to consider the following factors when choosing a Guardian for your children:
- Location – where does the Guardian live and do they have access to important amenities such as a school, child care, medical treatment etc?
- Relationship – what sort of relationship does your child have with the Gaurdian? Are they close and already have a bond?
- Financial situation – aside from providing financially for your child through your Will, can the Guardian continue to financially support your child?
- Living arrangements – what sort of living arrangements can the Guardian offer? Is their home adequate for a child and do they have enough space?
- Other children – does the Guardian have other children or plans to have a child of their own? How will that impact your child?
- Lifestyle – do the cultural and religious beliefs of the Guardian align with how you would like your child to be raised?
Family Provisions
The freedom to make a Will on whatever terms one wishes is limited by the overriding consideration that a person must consider his or her moral responsibility to provide for one’s spouse, children or others. The Court has the power to order financial provisions to be made out of the Estate of a deceased person for the ‘proper maintenance and support’ of a person ‘for whom he or she had responsibility to make provision’.
It important to keep the Family Provisions in mind when preparing a Will to ensure your children are adequately provided for in addition to other family members. Different legislation applies in different states so it is important to review these with a succession lawyer to ensure you have included everything.
The court considers various factors to determine whether the deceased had a responsibility to make provision for a person and whether the proposed distribution of the Estate, as contemplated under the deceased’s Will or rules of intestacy, makes adequate provision for the proper maintenance and support of that person/persons.
An applicant must show that the deceased had a responsibility to make provisions or further provisions for that person. No class of person is excluded but financial considerations must be taken into account in making a claim of this nature as an applicant will not only be liable for his/her own costs but also, the estate costs if the applicant’s claim is dismissed.
It is extremely important to make sure that your Will adequately provides for your family, and dependants. This will reduce the costs involved in administrating your Estate and prevent your Will from being contested. It will also mean that your loved ones will not have the burden of making a family provision claim and your children will be looked after when you leave this Earth.
For specific legal advice in relation to your personal situation, contacting a succession lawyer is advised.
