If you have children, you can’t leave their future uncertain. Updating our Wills is usually the item on our ‘list of things to do’ that never gets done. Quite often, if our Wills aren’t up to date, or we don’t get the proper advice, and our Will doesn’t actually protect our children or our loved ones, and there are mistakes.
To make sure you do the best for your children, please consider the following tips when appointing guardians to care for them:
Family members may not be the best choice
We often mistakenly believe that our children would be too much of a burden for our closest friends to raise if something should happen to us. We think that family is the better option, because family is family, and they are really obliged to do so because of blood. But these beliefs are false.
You need to make the decision about appointing the guardians of your children based on your parenting values. If your friends are more closely aligned with how you want your children raised than your siblings, then your friends are a better chose.
Speak to your friends about it. Often they would be honoured, and might even reciprocate and appoint you are the guardians for their children. It will bring your friendship closer, because of the level of trust you have created, and you will talk more deeply about your values than you might have otherwise. Your friends will also have more of an interest to get to know your children really well if you have appointed them as guardians.
Name more than one possible guardian
If you name a couple as the guardians for your children, would you be happy for one of that couple to continue raising your children if they divorced, or if one of them died? You can make your appointment of guardians conditional, and you should also appoint an alternative guardian in case your primary choice is no longer suitable or available.
You don’t want to leave it up to your primary guardian to appoint a backup guardian for you! You also don’t want your primary guardian failing in the role and giving your children up to be cared for someone else – you wouldn’t have a say.
Don’t base your decision on financial resources
Who you appoint as guardian should not be based on money. This is a reason that we often avoid appointing our friends because we think it will be too much of a financial burden. But, there are ways that you can arrange that your guardians won’t be out of pocket raising your children.
You should think about additional life insurance and making that available to the guardians. But also, your children’s inheritance can be utilised for their education and maintenance even before they are old enough to inherit.
To make sure this works, the selection of your executor is just as important as your selection of a guardian. You don’t want them to be the same person, or to act alone, or there could be a risk of abuse of the access to your children’s inheritance. But you also want someone who will be financially responsible if you appoint them as executor, and you will want them to understand what you would approve money to be spent on and what you wouldn’t (for example, you might not want your executor approving your children’s inheritance to be spent on an annual holiday on the Gold Coast).
Use a trust to handle your children’s inheritance
If your children are minors, a minor’s trust will automatically arise until they can inherit at the age of 18. You can make the minor’s trust last for longer by specifying an older age. But I am recommending that you set up a testamentary discretionary trust rather than a simple minor’s trust.
When you get advice about preparing your Will, make sure you ask about the advantages and disadvantages of a discretionary testamentary trust in your Will, to protect your children’s inheritance. There’s plenty of useful information on my website about this too, so you can do your research first.
Notify the people you appoint as guardians and provide them with proper instructions
Make sure you let the people you appoint know! It will be better for your children to know their potential guardians well, and the guardians you have appointed are likely to take a more keen interest in your children.
You also want to document some instructions, if possible. You want to leave behind as much detail as you can, and guidance, so that the guardians for your children aren’t guessing about your intentions. A lot of solicitors don’t guide their clients through leaving detailed instructions when people prepare their Wills, but I do. Make sure you find a solicitor that can help you with this, or make sure you undertake this yourself.
This article is written by Jacqui Brauman and was first published on the TBA Law website
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.