Things You Should Consider When Drawing Up Your Will

When drawing up your will, it’s vital to appoint a guardian who will be responsible for your children’s well-being in the event of your death. Clive Hill, legal adviser at Sanlam Trust, answered our questions.

There’s often confusion about the roles of godparents and guardians in the event of one’s death. What is the difference?

Your children’s godparents have no legal role when it comes to the well-being of your children after your death, whereas their guardians do have a legal role with long-term responsibilities to ensure that your kids are properly cared for.

A godparent’s role is essentially a spiritual role rather than a legal one. Its origins are religious and although there are cultural variations, the role today doesn’t encompass decisions regarding the daily practical needs of your children. A legal guardian, on the other hand, is the person who will make the day-to-day decisions regarding your child’s welfare should you die or become incapacitated – decisions about where your child will live, schooling and their general care until the age of 18. The legal guardian, as named in your will, and provided this person is competent, will be formally appointed by the Master of the High Court.

Why is it so important to state your choice of guardian in your will?

When you draw up your will, you’re going to think carefully about what it says because it reflects your last wishes which will be carried out by others after your death. You’ll need to think seriously about who you trust to look after your children when you’re gone. Your choice will be recorded in a document that will be kept in safe custody and which, by law, must be handed in to the Master of the High Court after your death. So while you might want to record your decision about the guardian of your children in another manner, doing so in your will is a secure and dependable way to ensure that your wishes will be read and acted upon by an independent party.

What factors should you consider when choosing a guardian? 

Your chosen guardian should be informed in advance of your wishes and be willing to take on this important role. The person or people should be prepared for the consequences of guardianship.

You should review your choice of guardian from time to time, because people’s circumstances change and the person you selected after the birth of your child may no longer be the appropriate choice 10 years later.

When choosing a potential legal guardian for your child, consider someone who:

  • has a cultural background and family values similar to that of yours
  • your child knows and is comfortable with and who also has children
  • lives in the same neighbourhood, ensuring continuity of schooling
  • keeps regular contact with you and your children
  • is relatively stable financially

How can a financial adviser help put the necessary plans in place?

A trusted financial adviser will assist with drawing up an appropriate financial plan which includes provision for minor children in the event of the death of both parents. This provision is often achieved by setting up a trust. To avoid a potential legal minefield, it’s crucial that you obtain the assistance of a qualified fiduciary practitioner. It will definitely be money well spent to secure your children’s legacy.

What other essential things should you keep in mind?

The guardian you choose will need money to meet your children’s daily needs. Usually, this money is provided by a trust set up in your will. Having the trustee and the guardian as the same person is an unhealthy situation because the latter might be tempted to spend the money in the trust on themselves. It’s far better to separate the roles and appoint an independent professional trustee to ensure neutral money management. This allows the guardian to focus on their role as caregiver.

source: destinyman


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