Providing for your minor children in your will
Many parents with minor children are worried about what would happen to them in the instance where both parents die simultaneously or shortly after one another.
Firstly, there is the question as to who would look after the children on a day-to-day basis, and assume responsibility for their care and wellbeing.
In the event that one parent dies, the remaining parent will, in law, become the sole guardian of any minor children (under 18 years old), but if the last surviving parent dies, or both parents die simultaneously, then a guardian must be appointed for the minor children.
This could be provided for in a joint will of both parents, or in the will of the last dying of them, or by the court on application. It is much cheaper and efficient if the appointment is done in a will, as long as the appointed guardian accepts the appointment upon the death of the parents.
Secondly, the question may arise as to whether assets may be bequeathed to a minor child in a will. Although there is nothing in our law that prohibits such a bequest to a minor, the problem that may immediately arise is that the minor may not always be able to deal with such assets without the assistance of his guardian, or, in the case of immovable property, the consent of the Master of the High Court, or even the High Court itself.
In order to better manage such assets on behalf of the minor, it may be advisable to set up a trust to receive, invest, manage and control the assets for the benefit of the minor.
This could be a separate trust, created before the death of the parents (a so-called inter vivos trust), or the trust could be created in the will of the parents specifically for that purpose (a testamentary trust).
This would allow the parents to appoint a specific person or persons to take control of the financial aspects concerning the care and wellbeing of their children, and to make the best short- and long-term decisions on investment or other forms of preservation of assets received from the will of the parents.
A lot more may be written about the specific provisions to be incorporated in such a will or trust, and our specialised attorneys at Swanepoel & Partners Incorporated are eminently equipped to provide you with the best advice in these matters.
