Who will look after my children if I die? Why every parent needs a Will.

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Have you ever thought about who would look after your children if you die?

If you have a properly drafted Will and one that nominates a testamentary guardian for your children there is no need to read much further, but please take some time to review your Will if it is more than 3 years old or your circumstances have changed since drafting it.

If you do not have a Will or one that is properly drafted, what will happen to your children after you die? Will your family to sort it out? Will your spouse, parents, aunt, brother or sister care for them or even be in the position to care for them? If you are unsure, you may be surprised about what I have to say in the remainder of this blog.

Firstly, when you die without Will, it is called "intestate" and your estate will be distributed according to a formula set out by the Administration Act 1903 (WA).  Intestacy rules may not take into account factors or circumstances you would have otherwise considered if you had decided what happens to your estate and children in a Will.

If you and your partner die without a Will, there is no guarantee that your children will be cared for by the person you believe will do the best job. The Courts and the Department of Child Protection would appoint someone to raise your children.

You should also consider that if you die without a Will and have a surviving spouse, they may only be entitled to a portion of your estate. The remainder would be divided amongst your children. If your children are under the age of 18, an administrator would be appointed to control their money. This may mean that your spouse would not have access to the money to help raise your children without going through a complicated legal procedure. 

If all of the above scares you (as it should), the best way to ensure your wishes are carried out is to make a Will. A Will does more than just specify who will inherit your bank accounts, jewellery, cars, hamster, and other property after you die. It is the single most important thing you can do to make sure your children are cared for by the people and manner you would choose if anything were to happen to you. It will allow you to make adequate provision for your surviving spouse to care for your children.

A Will will allow you to designate a testamentary guardian for your children should both you and your spouse die before the children reach 18 years old. This means (unless you choose) your children won’t have to go and live with grumpy aunt Trunchbull.

The person you choose as testamentary guardian will have the same types of rights, powers and duties as a natural parent. They will be responsible for taking care of your children’s daily and long-term needs. This person does not have to be a relative and more than one may be appointed. They will not have the power to administer your estate, but they may be able to retrieve funds from the estate to support your children until they are 18 years old.

If you have any further questions regarding caring for your child after your death, please contact our Wills and Estate team on (08) 9386 5200 or email us at This email address is being protected from spambots. You need JavaScript enabled to view it..

 

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Wednesday, 12 December 2018