Will it matter? How to child-proof your estate.
‘Now that you’re eighteen, there’s something important we have to talk about. It’s going to be uncomfortable…’
The conversation that ensued with my parents, wasn’t about sex (the horse had bolted on that one) but about death. Specifically, if I would assume custody of my nine and five-year-old brothers if both of my parents passed away. Fifteen years later, following the birth of my own child, I now find myself pondering the same issue.
It’s a conversation that sadly, not nearly enough of us are having.
The Australian Investment and Securities Commission (ASIC) estimates nearly half of Aussies die intestate (without a will). And while we are keenly aware of the mess this can leave our surviving relatives when it comes to our finances, we rarely think about the catastrophic impact not appointing a legal guardian can have on orphaned children.
It was a particularly harrowing case that convinced Principal Solicitor, Jacqui Brauman to specialise in Estate Law. “I came across a case through a prosecutor friend of mine who was prosecuting a lady who had run a red light and killed a husband and wife. That husband and wife did not have wills, and they had two young boys in primary school. Those boys had subsequently been in Family Court for about 18 months since their parents died, because their grandparents were fighting over who the boys should live with, and who controlled their inheritance.”
All of this might have been avoided if the parents had specified in a will who should care for their sons if the unimaginable occurred. Without a guardian appointed, decisions about who should raise your children revert to the Family Law Act and whilst a grandparent or other relative can make an application, it’s up to the court who is granted custody. If no suitable guardians can be found, a child may be placed into a foster care arrangement whilst the relevant state authority investigate—a heart-wrenching situation for any child. If you don’t want to leave a decision as life-changing as this to fate—or the courts—it may be time to draft a will that includes a guardianship arrangement.
Finding a good match
In appointing a guardian, Brauman urges that the most important consideration is how you’d like your children to be raised—and that might mean thinking beyond blood. “We often mistakenly believe that our children would be too much of a burden for our closest friends to raise… The decision about appointing the guardians of your children should be based on your parenting values. If your friends are more closely aligned to how you want your children raised than your siblings or your parents, then your friends are a better choice.”
A word of caution on appointing couple friends
However, exercise caution when appointing coupled-up friends as joint guardians. Even seemingly rock-solid relationships can come to an end—and you don’t want to leave the legal rights of your children to two people navigating a messy divorce. For example, if you wouldn’t want your friend’s husband raising your children alone, it might be worth considering naming your friend only as the guardian. “Think about whether you’re happy for them to continue being the guardians for your children if they divorce, or if one dies. This might disqualify them, so you need a backup,” Brauman says.
Financially providing for your children
A thorough estate lawyer can also help make provisions for the financial care of your children so as not to over-burden your appointed guardian. When drafted properly, these clauses can ensure your guardian can draw down on the children’s inheritance (within reason) for purposes such as their education and maintenance. This added financial support could help provide a more stable upbringing for your little one—allowing them to attend the same school, sporting activities and vacations you currently afford them. Special consideration should also be given to who you appoint as your executor, as their purpose, will be to manage the financial affairs of your estate equitably and according to your wishes.
Navigating complex family dynamics
Do you have a family member whom you wouldn’t want to raise your children under any circumstances? You might love your brother but your toxic sister-in-law as a guardian of your kids could be your own personal nightmare. In that case, you can legally exclude people from being guardians of your children. Brauman insists blended or single-parent families should be especially cautious. “This is particularly important for single parents who have formal Parenting Orders. If you appoint a guardian, they will step into your shoes in terms of parenting responsibility, so that your ex-spouse is not left as the primary guardian for your children.”
While my husband and I are standing at the precipice of a lifetime of parenting, it’s easy to imagine that tragedy won’t ever befall our family. But just like my parents did before me, it’s important to have the difficult conversations so we can ensure we provide our child with the best life possible—no matter what hand fate deals us. Although it can be emotional, creating and maintaining a legal will shouldn’t be viewed as a low-priority chore. If tragedy strikes, it will stand as a final act of love from you to your child.
