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Your children and your will

Writer's picture: Tim SmithTim Smith

Updated: Nov 10, 2022

Having a will in place is one thing, having a will in place that adequately addresses the needs of your children is quite another...

Just because you have a will in place, doesn't meant that it was drafted in a comprehensive enough manner to adequately address the needs of your children.


The three clauses below deal with very specific legal provisions that can have a profound effect on the future of your children.


Nomination of guardians

Who is going to care for your child/children should you and your spouse pass away?


I realise that it may be tough to think of someone else raising, caring for and mentoring your child/children. Nevertheless, it is crucial that caring, responsible, trustworthy, and emotionally mature individuals are nominated to be the guardians of your child/children.


These persons will have a huge impact on your child’s future in several ways:

  1. They will assist your child/children in coming to terms with your passing;

  2. They will be required to provide your child/children with accommodation, food, clothing, education, and medical care until they reach a stage when they can support themselves; and

  3. They will be responsible in making major life decisions for and on behalf of you and your child.

Considering this, your will should contain a provision to nominate these crucial people in your child/children’s life.


Trust for minor beneficiaries/heirs

Any child under the age of 18 in South Africa is considered a minor. Thus, the age of majority is 18 and at this juncture a child legally becomes and adult.


This distinction is very important as it could have a major effect on how the inheritance due to your child/children is dealt with.


In terms of the Administration of Estates Act any movable property inherited by a child may be delivered to his/her guardian for safekeeping on behalf of the child, and any money inherited by a child must be paid in the Guardian’s Fund. The child can claim any remaining funds from the Guardian’s Fund on or after their 18th birthday. Immovable property can be registered in the child’s name, but the child cannot sell or mortgage the property without permission from the High Court, depending on the value of the property.


Most Testators/Testatrix’s (the person whose will it is) do not want any minor beneficiaries/heirs’ inheritance to be held in the obscure Guardian’s Fund as they would like to provide directions as to how any funds set aside for the benefit of these beneficiaries/heirs should be invested, and how any income or capital should be distributed while these individuals are still minors.


Another concern is that the age of 18 may well be too young for a beneficiary/heir to receive and prudently manage an inheritance.


Lastly, the Testator/Testatrix may not approve of the legal restrictions placed on dealing with immovable property owned by a minor.


A solution to these issues is to create a trust/s, for the benefit of any minor beneficiaries/heirs, in your will. Any funds/assets which are to be distributed to a minor /s would be held in a trust for the benefit of the nominated beneficiary/ies. Trustees would administer this trust/s on your beneficiaries behalf and act as custodians of the assets/funds held within the trust structure.


These assets/funds can be held in a trust until the minor reaches the age of majority, or a older age (age 21/25 are the two ages most commonly used). An older age can be utilised to ensure that the eventual beneficiary/ies have reached a certain level of maturity before being required to manage these funds/assets themselves.


Collation

Another important discussion that needs to made when drafting a will is that of whether collation should be excluded or not.


If a parent’s will is read and the children become aware that they are to share equally in their inheritance with their siblings, any assistance provided to their siblings by their parents before their death could possibly cause jealousy.


This can result in one of their siblings instructing the executor of your estate to implement collation, which if not specifically excluded in the will, the executor is bound to implement. The process of collation will result in a pain staking "squaring of the books" so it can be determined how much assistance each of your children received from you as their parents during their lifetime and this will then be considered when distributing their inheritance.


On the surface level it may sound like a good idea, particularly when say one sibling has completed university (paid for by their parents) and the other one hasn’t. But this balancing of the books, more often than not produces nothing but strife, squabbles and pettiness.


In addition to this, any such "mismatches" can be provided for via another means. Using our education example from above: a better way to provide for this need is to bequeath a specific amount (equal to this child's expected education costs) to this child. Further to this, these funds could be held in a trust (as mentioned above) to ensure that these funds are used for their intended purpose. The balance of your estate could then be distributed equally between your two children.


Has your will been adequately drafted to comprehensively address the needs of your children? - Contact me today so that we can ensure that it does.



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