Providing for children in a will
Providing for children in a will
Creating a will that provides for your children may prevent many problems down the track. Providing for your children in a will can give certainty around issues such as guardianship and the inheritance of valuable or sentimental property in the event of your death.
Here are the key children-related issues to be considered when writing your will:
Choosing who should care for your children in the event of your death may be the most important decision you make in your will. If both parents have died, the nominated guardian of your children will have the important role of caring for your children on a daily basis. The guardian will have all the rights and duties normally vested in the parents.
It is a good idea to discuss this responsibility with the proposed guardian as well as your spouse, so that everyone is aware of who is taking on the responsibility of the children’s welfare in the event of both parents’ death.
It is important to note that if you die, the other parent will still have parental rights even if they have been out of contact with the children or have divorced, separated or never legally married you.
You may wish to provide financially for your children in your will. This may be in the form of giving them some or all of your savings, or any other financial assets you have gained over time.
You may do this by including specific provisions in your will, or you may set up a testamentary trust. This is a trust that comes into effect on your death, and can be an effective and controlled way of financially providing for your children. A testamentary trust can ensure your children are provided for even if your spouse remarries or has other children.
It can also be used to provide a greater level of certainty and control over when and how your children can receive your assets. For example, while children can legally receive assets at the age of 18 you may wish to hold off on them receiving the assets until they are older, or you may want them to receive the assets incrementally over a number of years.
If you are considering passing property on to a child, you should be aware of how you own your property and whether your child is legally old enough to inherit the property.
A family home is often jointly owned with a spouse. If this is the case, your spouse will automatically become the sole owner of the property when you die. If you own the property as tenants in common with your spouse, you can specify who will receive your share of the property when you die.
For example you could give your share to your spouse, or choose to give it to one of your children. If you are the sole owner of a property, you may pass the property onto your child or jointly onto your children.
However, you should be aware that if your child or children are under the age of 18, you cannot legally pass property onto them. Your will may specify that the property will be held in trust for them by a trustee appointed in your will until they turn either the minimum age of 18, or an older age of your choosing which you believe may be more appropriate for the responsibility of owning property.
You may have items of sentimental or financial value that you wish to pass on to a specific child. For example, you may have jewellery such as an engagement ring or valuable watch that you would like to pass on to a daughter or son. Choosing who receives these items can help prevent disputes among adult children after you die.
You may also detail the age at which you would like your child to receive the gift. This is useful if you are writing your will when they are still very young and would prefer them to have the item when they are more mature.
Care should be taken to ensure you are the true owner of the item, and whether there are any mortgages attached to larger items, for example a car that may still need to be paid off after your death.
Providing for step-children
If you have step-children you may want to consider how they will be provided for in the event of your death. A step-child will not automatically receive assets from your estate if you die. However you may include specific provisions in your will for your step-child relating to both their guardianship and to any assets you wish them to receive.
As with all areas of estate planning and will drafting, matters can become complex very quickly and seemingly minor oversights can have very large unintended consequences in the future. If you have any questions arising from this post, please contact one of our expert estate planning lawyers by calling us on 07 3106 3016 or contacting us using the form on this page.
This article does not give legal advice and should not be relied upon as such. It is intended to provide general and summary information on legal topics, current at the time of first publication. You should seek professional legal advice before acting or relying on any of the content contained herein.