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Your Will is arguably one of the most important documents you’ll sign during your lifetime.  Not only does your Will give you the opportunity to decide who receives your assets when you pass away, it also enables you to decide who shall take care of your children.

If you have minor children (children under the age of 18), it is strongly advisable your Will makes provision for the appointment of a guardian (the individual(s) who will look after your children). Should both parents of a minor child pass away, it is important to have peace of mind that the right person will be legally responsible for your children. If you do not nominate a guardian in your Will, there is the risk that future disputes may arise between remaining family members regarding who the guardian should be, which disputes lead to costly litigation.

The second aspect to consider is the financial security of your children and who will be responsible for managing their inheritance. Unless you create a testamentary trust in your Will, all money or assets bequeathed to your children (heirs) who are under the age of 18, will automatically go to the Guardians Fund, a government department managed by the Master of the High Court, a division of the Department of Justice. Should a child’s inheritance go to the Guardian’s Fund it causes many administrative hassles and financial hardships for children of the deceased. The only way to avoid the troublesome consequences of the Guardians Fund is to insert provisions in your Will establishing a Testamentary Trust. In your Will two or more trustees shall be appointed and the trustees are responsible for managing the inheritance payable to a child. The inheritance is paid into a Trust created by your Will and administered by the trustees until the heirs reach a certain age (usually between 18 and 25). Typically, a guardian is one of the duly appointed trustees of the Trust.

These are some easy steps that you can take to ensure that there is no uncertainty about your estate and minor children after you pass away:

  1. Make sure that you have a Will in place otherwise you Will die intestate and have no control over how your assets are divided and who will look after your children.
  2. Revise your Will after any life changing events such as marriage or the arrival of children.
  3. If anyone inheriting in terms of your Will may be under the age of 18 when you pass away, ensure that your Will makes provision for a Testamentary Trust.
  4. If you have minor children, ensure that your Will makes provision for the appointment of a guardian should both parents pass away.

For assistance drafting your Will contact Bridget Witts-Hewinson on 021 671 9322 or by email at bridget@curranattorneys.co.za.