Securing your child’s future (Part 1 of 4): Estate Planning for when you are expecting

Estate Planning for when you are expecting

When you are expecting the arrival of a new child, there are hundreds of things that cross your mind, like choosing the perfect pram, and preparing your house and a nursery for the new baby. Preparing a new Will and reviewing your Estate Planning is often not even on your list, however given the severe ramifications if you die intestate (without a Will) it should really be at the top of your list, and can provide great peace of mind that your partner and child will not be left suffering because of your failure to be proactive and plan for the worst eventuality when you had the chance to do so.

It should be a pre-requisite to becoming a parent that you sit down with a lawyer to discuss your Estate Planning for the future, which should include:

• preparing a Will to cover your wishes for when you die, including who would hold any share of your assets on trust for your infant child until they reach a certain age, and who you would want as their guardian and to be responsible for their care if you and/or any partner are no longer able to look out for them yourselves, and
• preparing an Enduring Power of Attorney and Advance Care Directive to complement your Will and protect your interests during your lifetime (to deal with who can make your financial and medical decisions if you ever cannot manage your own affairs at any time by reason of accident, illness or medical treatment, etc.) – if your affairs are being mismanaged at such times this will almost certainly have consequences which extend to your infant child;
• planning where Superannuation or any Life Insurance proceeds would be paid;
• planning for what would happen to business interests, companies or trusts you may own or control.

Death may not be the first thing you are thinking about when considering bringing new life into the world, but for many reasons including those outlined above it is important that expectant parents and parents with young children get their Estate Planning in order sooner rather than later.

Testamentary Guardianship

In a Will a person can appoint someone to take over as the guardian of any of their minor children under the age of eighteen in the event of their death, however this is in no way binding and will merely be taken as an expression of the deceased parent’s wishes. It is nonetheless important that your Will outlines such wishes as this is the only way you can have input and help to inform the authorities’ decisions in such a case. You are usually the best placed to know what will be in your child’s best interests, but if you haven’t left any guidance, the authorities may well have to make that call based only on the typically limited information available to them.

In the event of a dispute over testamentary guardianship, an application can be made to the Family Law Courts to determine this issue along with any other.

Furthermore in South Australia the Guardianship of Infant Act 1904 (SA) allows the Court the power to consider each situation, the apparent best interests of the child, and to make orders as they see fit including:

• to grant sole guardianship to a surviving parent;
• to grant joint guardianship to the testamentary guardian in conjunction with the surviving parent;
• to grant sole guardianship to the testamentary guardian ahead of a surviving parent;
• in circumstances where both parents are deceased, and have each appointed separate testamentary guardians, to grant joint guardianship to those testamentary guardians;
• to make or vary maintenance orders for the financial support of the child.

When preparing a Will it is recommended that a testamentary guardian be appointed, as well as substitute guardians who will act in the case that primary guardians are unable or unwilling to act or at any later point continue to act in that role.

It is important to prepare a Will to reflect your wishes as to who you want to be the testamentary guardian of your minor children, as often you will nominate different persons to what your friends or family would have expected. This can be influenced by a range of factors, your assessment of who would best raise your children as you would have done, the financial responsibility of the persons concerned, even their religious views. Not including any guardianship directions in your Will can result in protracted arguments as to who the guardian or guardians of your minor children should be, and can end with someone being appointed you would not have chosen had you made this decision in your Will.

We are here to help

Our friendly and professional Wills and Estate Planning specialists can provide you with peace of mind, and ensure that the future of your family is secured against the risks of any death or loss of capacity, by discussing and assisting you to prepare and implement a practical and comprehensive Will and other complementary Estate Planning documents.

For more specific information on any of the material contained in this article please contact Nick Muirhead on +61 8 8210 1220 or nmuirhead@normans.com.au or Stefanie Magliani on +61 8 8217 1373 or smagliani@normans.com.au.