You are currently viewing Part 2 of 3: WHO ELSE? Making a will as a parent or caregiver

Part 2 of 3: WHO ELSE? Making a will as a parent or caregiver

In our previous post we looked at the main parties involved in any last will and testament. There will be other parties too, if you include in your will a minor child, or another beneficiary who needs assistance in managing their share in your estate. In this post, we consider these people and the roles they play.

Guardian – As the parent of a child aged under 18 years (a “minor” child), you can nominate one or more people to be appointed as that child’s legal guardian, should you and any other guardian (such as another parent) both die before the child becomes a legal adult. The appointment is not automatic and requires a court order after your death. The guardian is responsible for major legal decisions concerning the child. In most cases it is sensible to appoint the person who would be entrusted with the physical care of your child in your absence, as the guardian. Responsibility for managing any cash or immovable property (houses or land) inherited by a child can be left to the same person as a trustee, but need not be.

Guardian’s Fund – If a child aged under 18 years stands to inherit cash or immovable property in terms of a will or intestate succession law, the Guardian’s Fund, an office within the Master of the High Court, will take control of that cash or property and manage it until the child turns 18 years of age. The child’s guardian can apply to the Guardian’s Fund for access to that cash for the child’s maintenance, or permission to dispose of the child’s property (with the proceeds to be paid to the Guardian’s Fund). When the child turns 18 years of age, they can apply for the remaining assets to be transferred to them personally.

Trustee – In most cases, it is not in a child’s best interests to have their assets managed by the Guardian’s Fund. It is preferable to set up a trust in your will, if there is any likelihood that your minor child or grandchild will inherit immovable property or any substantial amount of cash from your estate. The downsides of relying on the Guardian’s Fund include: dealing with a bureaucracy and its inefficiencies; relying on unknown government officials who do not know your child or take a personal interest in them; and all assets being released to your child on legal adulthood (at 18 years). A trust has the benefits of being: more efficient; managed by trusted people selected by you in your will; and flexible enough to continue until an age of your choosing (often 21 to 25 years, or indefinitely).

You should select trustees who are responsible and diligent people, and will take a personal interest in your specific child’s needs and welfare.

There is a common misconception that the executor and trustee are the same role. They are not. The executor is responsible for collecting assets, paying debts, and transferring what is left to the correct beneficiaries. The trustee’s role becomes most important around the time that the executor’s role is being completed. Once the executor has transferred assets to the trust from the estate, the trustee must manage these for the lifetime of the trust. This too is an important role requiring utmost trust and good faith.

One person can be executor, guardian, and a trustee, or these can be completely different people. This all depends on your personal circumstances.

In our next post: Ensuring a valid will – how to get the prescribed formalities right and avoid common but costly mistakes