Why parents of minor children should have a Will

When someone dies without a Will, they do not get the important choice of how their Estate is distributed, and instead this is dictated by the laws of intestacy (What Happens If I Die Without A Will? | Wills | Wakefield Lawyers Warragul & Drouin). According to the laws of intestacy, upon both parents dying, their children will typically be the equal beneficiaries of the last remaining parent’s Estate.

Who controls the Estate and the children’s inheritance?

The beneficiary of an intestate estate typically has the right to apply to the Supreme Court to be appointed as the administrator of the Estate (similar to an Executor). However, this mightn’t be the parents’ wish, and it is also problematic when all of the beneficiaries are minor children (under the age of 18 years).  

The Court may allow the parent’s next-of-kin or the guardian of the children to be the administrator but until they are appointed the State Trustees will have control of the Estate. Ultimately the decision of who is appointed is up to the Supreme Court, and they can keep State Trustees as administrator should they consider this appropriate.

Children cannot directly inherit assets from an Estate unless they are at least 18. A Will typically includes a provision for who is to manage the inheritance of a child, for example, their guardian or the Executor, and until what age, which is commonly 21 or 25 as 18 is often considered too young.

The Supreme Court can allow the guardian of the children to hold the inheritance until they are 18, subject to any limitations or conditions that the Court thinks fit.

Alternatively, the Court can appoint State Trustees to hold the inheritance until they turn 18, and in special circumstances the Court themselves can hold the inheritance. Whilst this is done to protect the interests of the child, it can make it hard for the inheritance to be accessible to the children for their needs as this requires full consent of State Trustees or the Court. There are often significant fees that are payable from the inheritance for them to hold and manage the inheritance too.

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Guardianship Clause

Perhaps more significantly than the distribution of a parent’s Estate, having no Will means that the parents have not formally decided who they’d like to have the ongoing care of the children.

In the event that one parent passes away, the surviving parent becomes the sole guardian of the children. If there is no surviving parent and no guardian appointed by a Will, the Supreme Court determines who is appointed as the guardian.

Any person with “sufficient interest” in the children can apply to the Court for guardianship. This can of course take a toll on anyone involved including the children themselves, and particularly if there is disagreement about who should be appointed.

The Court then considers what is the “best interests of a child”, which is a complex decision with many factors that is better made by the parents knowing that this guardian will influence the life of their children. This is someone who should have the necessary bond with the children and the time, energy, income and responsibility to care for them.

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If you have or are planning to have children under 18 years, we can assist you to make a Will ensuring that you choose who will have control over your children’s wellbeing and their funds, rather than it being left for a Court to decide.

Contact our friendly and professional estate planning team today on 03 5623 5166 or reception@wakefieldlawyers.com.au, or book an appointment online (Wakefield Lawyers - Telephone Appointments).

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Disclaimer: The information in this post is general in nature. This does not constitute legal advice and should not be relied on as such. Please contact one of our Lawyers if you are seeking advice about a specific legal matter.

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