A Will is a legal document that specifies who will inherit your assets and property when you die. But a Will is much more than just a way of distributing your property when you are gone – especially if you have children.
For parents, making a Will is the single most important thing you can do to ensure that your children are cared for by the people you would choose to raise them if something happened to you before they reach adulthood.
What happens if I die without a will?
If you die without a will, there is no guarantee that your assets will go to the people you want or that your children will be cared for by people that you believe would be the best choice. Generally speaking without a will, State laws require that your assets be divided according to an inflexible formula. Generally speaking, your spouse or partner (if you have one) would receive one-third and the rest would be designated for your children.
What is a testamentary guardian, and why do I need one for my child?
A testamentary guardian is someone chosen by you to care for your children in case both parents die before the child reaches adulthood. If you pass away without a Will, the Court will decide who should care for your children. That person might have very different ideas about parenting than you. In your Will you can choose a testamentary guardian for your children and make sure that they are looked after by someone you love and trust.
Ideally you and your spouse or partner should name the same person in your Wills as guardian to avoid confusion and conflicts. Many parents also choose an alternate guardian in case their first choice is unwilling or unable to take on the responsibility. (e.g. aging grandparents are no longer up to the task.)
How do I choose the right person to be testamentary guardian?
Here are a few things to think about:
- Who would be most able to take on the responsibility of a caring for a child —physically, emotionally and financially?
- Whose parenting styles and values most closely align with yours?
- Whom would your child feel most comfortable with?
- Would your child have to move far away, and what problems would that pose?
Finally, speak to the people you are considering for this important role as this will likely assist you in making your final choice.
Should I name a different person to manage the assets I leave to my children?
You can designate a trustee to manage your money for your children until they become adults. You can appoint one person to act as both trustee and testamentary guardian, or you can choose two people to carry out the separate roles. The choice is yours and every person’s circumstances vary.
And finally
Losing someone is incredibly hard, and the last thing anyone wants to do is spend those difficult times dealing with lawyers or haggling with family members. Making a Will keeps your loved ones from having to deal with legal hassles in a time of sadness. It will also give you peace of mind knowing that you have done everything necessary to ensure that your loved ones are looked after in the best way possible.
By Elizabeth Michael
Principal Lawyer at City Pacific Lawyers Bayside –
765D Hawthorn Road, Brighton East – 03 9592 3356
emichael@citypacific.com.au
