If you have minor children, it is important that you nominate a guardian for them in terms of your will, keeping in mind that the guardian will be responsible for caring for your child should you pass away. If you and the child’s other parent are still alive, your child has two natural guardians, and your legal guardian would only assume responsibility if you and your spouse (or the other parent) were to die simultaneously. On the other hand, if you are the child’s sole guardian, the legal guardian that you appoint in terms of your will would assume responsibility for your child in the event of your death.
According the Children’s Act, (38 of 2005) you are able to nominate a legal guardian for your child in your will and, if the guardian accepts the position, they will acquire full parental rights and responsibilities. It is important to give careful consideration as to who would be best to care for your child, taking into account their cultural background, value system, religious beliefs, their location, and financial stability. The legal guardian is required to administer any property inherited by your minor child until they reach age 18 and will be required to make all decisions regarding your child’s schooling, extra-mural activities, and vocational guidance. The guardian will also be responsible for assisting or representing your minor child in administrative, contractual and/or legal matters until they reach maturity.
Consider appointing an alternative guardian in your will in the event that the primary nomination is unavailable or unwilling to assume the appointment at the time.
Children under the age of 18 do not have contractual capacity and are not capable of inheriting. If you bequeath cash to a minor child, these funds will be administered by the Guardian Fund on the child’s behalf until they reach the age of majority. Where assets such as fixed property are bequeathed to a minor child, it is likely that their legal guardian will be responsible to administering the asset on the child’s behalf until they reach age 18.
But there is an alternative, namely creating a testamentary trust to circumvent these situations. By setting up a testamentary trust in your will and nominating the trust as the beneficiary of those assets intended for the benefit of minor children, you can ensure that these assets will be transferred directly to the trust in the event of your passing.