My husband and I have two minor children. I am concerned about who will look after our children in the event of my husband and I passing away at the same time. We have been advised to nominate guardians in our wills. What should I keep in mind when choosing guardians?

Choosing guardians for your children is one of the hardest and most important decisions you will ever have to make. The thought of someone other than you raising your precious children is gut-wrenching. The worst part about it? You’ll never be fully comfortable with the choice, because no one can do as good a job as you. There is no perfect choice. However difficult it may be, naming guardians is a must-do for every parent. If the thought of placing the future of your children in someone else’s hands makes you queasy, imagine leaving the decision to someone you do not like, or do not even know. That is why parents should pick legal guardians – the persons who should raise their children if both parents die before the children turn 18.

When preparing a Last Will and Testament, the emphasis is typically on the disposition of property. However, selecting guardians to care for your minor children and nominating them in your Last Will and Testament is just as, if not more important, than distributing assets. The transition to life with guardians is especially traumatic as children come to terms with new parental figures, likely following the untimely death of one or both parents. The guardians you choose will be responsible for helping to heal this wound. It is of the utmost importance to choose guardians with whom you and your kids are comfortable and who has the emotional intelligence, time and interest to raise your children.

Choosing guardians

The first hurdle in choosing guardians is finding someone who is willing to act in such an important and responsible capacity. Raising someone else’s children is not a decision potential guardians should take lightly, as assuming guardianship will change the rest of the guardians’ lives, as they step into the roles as surrogate parents. Besides finding willing persons, choosing guardians involves objective and subjective assessments different from choosing other fiduciaries such as trustees. Guardians should be reliable and stable, with sound judgment and values that are similar to your own. The guardians will need to comfort, teach and encourage your children as they grow towards adulthood. Guardians who already have a warm and loving relationship with your children would be immensely valuable in such an emotionally trying transition.

Selecting family members

Instinctively, many think the right guardians for their children are family members. However, in some cases, nonfamily members may be a better fit. Naming friends as guardians is increasingly common, though relatives are still the most popular choice. While family is frequently an obvious choice, circumstances may make this impractical or undesirable. Hopefully your children are comfortable with grandparents, or an aunt and uncle who may have similarly aged children of their own. If this is not the case, close friends with similar values, who live nearby, and who have kids of their own, may be a better option than faraway relatives. The choice is specific to your lifestyle and your relationship with your family.

Naming alternate guardians

Unfortunately, couples divorce and families break up. Choosing a couple as guardians could turn out to be problematic if they divorce or one is otherwise no longer able to serve in the role. Such a scenario could give guardianship to a person whom you are less inclined to have raise your children. If alternates are not named and the nominated guardians are unable to care for your children, the decision as to their care could end up being made by a court. As a result, it is advisable to name alternates in case the first choice is unwilling or unable to act. This way your wishes can be carried out and the paths of your children’s lives are not at the discretion of a judge.

Revisiting your choice of guardians

Once you have carefully selected the guardians and alternates and have nominated them in your Last Will and Testament, it is important to remember to revisit the choices as circumstances change. As children (and guardians) age, their needs and abilities also change. You will want to make sure that the people you selected a few years ago are still the right choice today.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference List:

• Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.
• The Estate Agency Affairs Board. “Purchaser’s Cooling-Off Right: Guidelines for Estate Agents”. [online] Available at: https://www.eaab.org.za/ [Accessed 31/05/2016].
• http://www.privateproperty.co.za/

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Attorneys often emphasise the fact that you should have a will drawn up and revise it regularly in order to facilitate the bequeathing of your possessions after your death.  Many people still omit to do this. The problem is that, should a person die without leaving a valid will, in other words intestate, his/her estate will be administered and distributed according to the stipulations of the Intestate Succession Act  No 81 of 1987.

Below is a basic example of the effect an intestate death will have on the distribution of an estate. Should the composition of the beneficiaries of the deceased be more complex, the administering of the estate in terms of the Intestate Succession Act will also become more complicated.

Let us assume that person A dies and the value of his estate is R1.8 million. He is survived by his wife (B) and 2 children, of which one is of age and the other is a minor.

Scenario 1:

A and B is married out of community of property.

B inherits R125 000 or a child’s portion, whichever is the largest.

A child’s portion is calculated by dividing the total value of the estate by the spouse and number of children, in other words R1.8 million/3 = R600 000.

The spouse and children therefore inherits R600 000 each.

The inheritance of the minor will be paid to the Master’s Guardian’s Fund, as there is no will which determines that the minor heir’s inheritance should be placed in e.g. a Testamentary Trust, where the funds will be administrated on behalf of the minor until he/she becomes of age or reaches any other specified age.

Scenario 2:

A and B is married in community of property.

B inherits 50% of the estate due to the marriage in community of property.

B also inherits R125 000 or a child’s portion, whichever is the largest, with regard to the other half of the estate.

A child’s portion is calculated by dividing half of the total value of the estate by the spouse and number of children, in other words R900 000/3 = R300 000.

The spouse inherits R1.2 million and the children R300 000 each.

The inheritance of the minor will be paid to the Master’s Guardian’s Fund, as there is no will which determines that the minor heir’s inheritance should be placed in e.g. a Testamentary Trust, where the funds will be administrated on behalf of the minor until he/she becomes of age or reaches any other specified age. It is therefore clear that Intestate inheritance may result in an unpractical and often even impracticable division of assets.

The fact that the inheritance of the minor will be paid to the Master’s Guardian’s Fund may place the spouse in such a dilemma that she has to devise plans to finance the amount payable to the Master’s Guardian’s Fund to the benefit of the minor heir. Alternatively she could register a mortgage against an immovable property in favour of the Master’s Guardian’s Fund.

In case of death without a valid will there will of course be no person or institution appointed to support the surviving spouse in the administering of the estate. This should not usually present a huge obstacle, but the spouse should consider carefully which person or institution she appoints to assist her in this task. She should also negotiate the Executor’s fee with the relevant person or institution before the administering of the estate commences.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)

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