Make sure you have Guardianship and financial care for your children included in your Will

Rose Lawyers on 19 December 2018

When you have children, you're responsible for their care. As your children grow into young adults, they will begin to care for themselves. But what if something unexpected happens and you're no longer around to care for them before they can look after themselves?

While it's not easy to think about, it's important to take the right legal steps to ensure your children will be taken care of, no matter what happens. That's why it's vital to update your Will to include your children so you can be sure they are supported financially.

Do you need help including your children in your Will and ensuring they will be taken care of? Contact Rose Lawyers on 03 9878 5222 for assistance and advice from our Family and Wills and Estates Lawyers Melbourne.

Wills and children

wills and children

There are two important factors to consider when it comes to Wills and children:

  1. Guardianship of your child in your Will
  2. Financial care for your child in your Will

Guardianship

If both you and your spouse/partner die unexpectedly, you might assume that one of your parents or siblings will be the person responsible for their primary care. But this may not be the case. That's why it is vital that you firstly speak to your family about who will look after your child or children and secondly, to outline exactly who you want to care for your children in the event that something happens. After all, in the midst of what would be a stressful time, you'd want your children's care to be straightforward. You can do this by selecting a legal Guardian and confirming this in your Will.

A legal Guardian is responsible for:

  • Caring for your children, in the event that you both die before they reach adulthood. For example, including medical and education decisions.
  • Making decisions about your children's lifestyle, including, for example, religion, visitation with family, living arrangements, and healthcare.

Appointing a legal Guardian in your Will is straightforward; you simply need to list them in your Will as the person you elect to care for your children in the event that both you and your spouse die. You may also wish to leave a letter for your appointed Guardian outlining any firm wishes you may have for your child's care.

Financial care of your child

guardianship of child in will

You can provide for your children in your Will in any manner you wish. Children under 18 years can't legally hold most property, so if you die while they are underage, the asset they are to receive from you will be held in Trust on their bealf until they come of age or reach any other age you have directed.

Generally, your Executor will be the one who acts as Trustee and holds the asset on trust for the minor, but this doesn't have to be the case.

You may also wish to make a Trust for your children, such as a Testamentary Trust. Setting up a Trust can be complicated, and it is important to seek legal advice from our Will and Estate Lawyers Melbourne who can help you organise the financial care of your children.

  • Your chosen Guardian may also be appointed as Trustee for any property and assets you have left to your children in your Estate.
  • A Trustee is responsible for holding any assets and property until your children reach 18 years of age or and other older age nominated by you.
  • You may wish to appoint an independent person as the Trustee of your Estate.

Commonly asked questions about Wills and children

What happens if the parents are separated and one parent dies?

If parents are separated and the primary carer with majority custody dies, the surviving parent usually has the first right to the care of any children. This can be overruled if the parent does not want to, or is not able to, care for children. It can also be overruled if that parent is a danger to children. Danger to children can exist in the form of drug or alcohol use, or physical, mental or sexual assault. If a parent is a danger to the children, concerned parties -often friends or family - must show the court that this parent is not fit to care for the children. You can still include a Guardianship clause in your will to cover the situation where the surviving parent can't, or doesn't want to look after the children.

What happens if both parents die?

If each parent has a Will, the parent who dies last will have the Will that takes effect in relation to Guardianship of minors. If both parents die in an accident at the same time, there is an assumption at law that the younger parent died last. This can cause problems if parents do not agree on who should look after their children.

Do I have to tell the proposed Guardian that I am naming them as a Guardian in my Will?

Absolutely. In fact, you should go one step further and have extensive discussions with that person or people. This is because the person you have chosen may feel they can't look after your children. They may have other reasons, but whatever the case, you need to choose people who can not only look after your children, but who can accept the responsibility. It's important to remember that just because you appoint someone as Guardian in your will, doesn't mean they are forced to take on the job.

If you are concerned your chosen Guardian will spend the money you have put aside for your children, you can nominate an independent Executor who can manage your Estate. This way, your Guardian must approach your chosen Executor to obtain funds.

Should you consider the next generation in your Will when your children are minors?

It is important your Will is as comprehensive as possible. If, for whatever reason, you forget to change it -- or if something happens and you don't update it -- you are prepared. For instance, even if your children are only school-aged, you can still include a clause that states that if something happens and your child dies before you, you would want their share to go to their children.

At Rose Lawyers, we are here to help you plan for tomorrow, whatever it may bring. Contact us today on 03 9878 5222 and speak to our friendly team at Will and Estate Lawyers Melbourne. We can help you get peace of mind knowing your children will be taken care of in your Will, no matter what.