Although most of us have doing our Wills on our ‘list of things to do’ which never gets done, those who do make their Wills to protect their children and loved ones quite often make some mistakes.
The common mistakes that are made by parents appointing guardians for their children are:
1) Thinking that family members are the only appropriate guardians.
We often mistakenly believe that our children would be too much of a burden for our closest friends to raise, if something should happen to us.
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We think that family is the better option, because family is family, and they are really obliged to do so because of blood. But these beliefs are false.
You need to make the decision about appointing the guardians of your children based on your parenting values.
If your friends are more closely aligned to how your want your children raised than your siblings, then your friends are a better choice.
Speak to your friends about it. Often they would be honoured, and might even reciprocate and appoint you are the guardians for their children.
It will bring your friendship closer, because of the level of trust you have created, and you will talk more deeply about your values than you might have otherwise. Your friends will also have more of an interest to get to know your children really well, if you have appointed them as guardians.
2) Naming a couple to serve as guardians without considering what would happen if one of them dies.
For example, I would name my best friend and her husband as the guardians for my children. But if something happened to my best friend, I wouldn’t want her husband to raise my children alone. Not that I don’t really value him, it’s just that when I choose my best friend it is also because of the supportive marriage that she is in and I value them as a couple. I don’t think that my best friend’s husband would be great on his own. Likewise, if my best friend and her husband divorced, I don’t think my best friend would be great on her own either. You need to think of these contingencies.
If you appoint a couple, 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.
3) Only naming one possible guardian.
This mistake follows on from the last one. If your primary guardian is no longer suitable, and they may become unsuitable for a number of reasons, you need to nominate who would be the alternative guardian.
You don’t want to leave it up to your primary guardian to appoint a back up guardian for you!
You also don’t want your primary guardian failing in the role and giving your children up to be cared for someone else – you wouldn’t have a say. So, make sure you nominate an alternative guardian (or couple) after your primary choice.
4) Basing the decision on financial resources.
Who you appoint as guardian should not be based on money.
This is a reason that we often avoid appointing our friends, because we think it will be too much of a financial burden. But, there are ways that you can arrange that your guardians won’t be out of pocket raising your children.
You should think about additional life insurance, and making that available to the guardians.
But also, your children’s inheritance can be utilised for their education and maintenance even before they are old enough to inherit.
To make sure this works, the selection of your executor is just as important as your selection of a guardian. You don’t want them to be the same person, or to act alone, or there could be a risk of abuse of the access to your children’s inheritance.
But you also want someone who will be financially responsible if you appoint them as executor, and you will want them to understand what you would approve money to be spent on and what you wouldn’t (for example, you might not want your executor approving your children’s inheritance to be spent on an annual holiday on the Gold Coast).
5) Naming guardians only for the long term, and not thinking short term as well.
When we appoint guardians in our Will, we often think about them raising our children in the long term.
However, if the guardians you appoint don’t just live down the road from you, or they need to make accommodation arrangements if they are going to care for your children, you may want to appoint someone as a temporary guardian.
A temporary guardian can be like a first responder. They need to live close by, and they need to have the contact details of your family and long-term guardians. They may only need to take your children for a night or two, in the case of an emergency, but the main thing is that they know what to do and who to call.
6) Not using a trust to handle the children’s inheritance.
This follows on from the fourth point, about making sure there’s enough money for your guardians.
Your children’s inheritance will automatically be in a minor’s trust until they are eighteen, unless your specify an older age. But you can also set up a more detailed testamentary discretionary trust, instead of just a minor’s trust.
When you get advice about preparing your Will, make sure you ask about the advantages and disadvantages of a discretionary testamentary trust in your Will, to protect your children’s inheritance.
There’s plenty of useful information on my website about this too, so you can do your research first.
7) Not notifying people who are named as guardians, or providing them with proper instructions.
Quite often people appoint executors and guardians in their Will, and then don’t tell them. Or they tell them, but they don’t leave them any instructions.
The whole point of doing detailed Family Wealth Legacy Planning is to ensure that things go as smoothly as possible.
You want to leave behind as much detail as you can, and guidance, so that the guardians for your children aren’t guessing about your intentions.
A lot of solicitors don’t guide their clients through leaving detailed instructions when people prepare their Wills, but I do. Make sure you find a solicitor that can help you with this, or make sure you undertake this yourself.
8) Not excluding anyone you know you don’t want to serve as a guardian.
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.
Excluding someone as potential guardian could also be the way to excluding that toxic sister-in-law or other family member that you know could just cause trouble. Or someone who you know has good intentions, but whom you know just doesn’t have the same parenting values as you do.
You want the best for your children, so take responsibility and the opportunity to make sure it happens, instead of just leaving it up to hope.
Seek appropriate legal advice to ensure you don’t make these mistakes when you prepare your Will.
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