When we embark on the journey of parenthood; the entire experience can quite easily become overwhelming. From announcing the good news to friends and family, to changing just about everything in your life to accommodate this exciting new chapter. Not to mention the many doctors’ visits and wrapping things up at work; it is not surprising at all that the time left does not always consider the legal aspects of planning.

So, we recommend setting some time aside as part of the planning for your new arrival or shortly thereafter.

It also helps to get advice and to implement some strategies.

 

Strategies

Firstly, it is important to consider, in case something was to happen to you and your spouse / partner, who you would nominate as guardian of your children. This in our view should be someone who shares your values and would raise your child as you would have.

Once this has been done, it is important to update your will and provide for the appointment of a guardian, an executor, and for the distribution of assets.

Furthermore, it is important to provide for alternative guardian(s) and executor(s) in case the first nominated is not able or willing to serve.

The important distinction is that the guardian is charged with looking after your minor children and raise them. Thus, to tend to their day to day needs as a parent would. The executor conversely is charged with administering the deceased estate. So once this process is completed, they are usually released from office. The office of executor, although of a shorter term, is as important as that of the guardian.

It is therefore important that an executor is nominated who would deal with the distribution of assets in the most financially astute and responsible way possible. Ultimately, respecting the wishes of the deceased and doing what is best for the heirs left behind. So, it is important to nominate someone who you can trust and who is free to seek advice in the process as they may require.

Secondly, to assess whether or not you have adequately provided for your loved ones and accommodated for the payment of debts before finalising your will.  As such completing an estate planning calculation, including confirming liquidity in the estate, is of the utmost importance.

Thirdly, address any deficits identified though the process above. This may include implementing some additional insurance provisions or structuring things differently. Fourth, if your children are still minors – they cannot by law inherit. This means a testamentary trust is an invaluable structure, not only to ensure the due and proper management of the provisions made for your children, but also to ensure that they are able to benefit from your estate. If these provisions are not made, your estate or provisions may fall into the guardian’s fund, which is state owned.

It is important to nominate trustees that are able to properly manage the trust fund to the ultimate benefit of your children. We recommend that at least three persons are nominated and that the nominees are individuals who have different strengths which will ensure the all-important managerial diversity. This is also useful to prevent deadlock.

In many estates a trustee is also a guardian or executor. This is very practical but in order to avoid potential abuse, these offices should not only be held by only one or the same persons. In addition, a useful anti-abuse measure is for the trust to be subject to an audit.

 

Thus, it is important to critically think of this, plan your affairs and execute it before your baby is born or as soon as possible thereafter. More importantly, once done, it should be revised regularly to accommodate for any changed circumstances. So, contact a specialist at SchoemanLaw today. We will assist you through the process and ensure that it is handled as efficiently as possible during this special journey.

About The Author

Nicolene Schoeman-Louw

I founded the firm Schoemanlaw Inc in 2007 aged 24 and am the Managing Director of the firm. I am an admitted attorney of the High Court of South Africa, as well as a Conveyancer , Notary Public and Mediator. I obtained my LLB degree cum laude and successfully completed my LLM degree (dissertation) in commercial law and B-BBEE at the University of the Free State. In addition I obtained my postgraduate diploma in financial planning (CFP) at the University of Stellenbosch. An abstract of my LLM dissertation was published in the Journal for Estate Planning in 2006 and is regularly published in De Rebus (the SA attorneys’ journal) as well as Without Prejudice and Polity.org (legalbriefs). I also write regularly for various online publications such as Spice for Life and other mainstream publications such as The Entrepreneur Magazine, Personal Finance Magazine and have a regular slot on SAfm’s The Law Report with Karen Key. For more information visit http://www.schoemanlaw.co.za/about-us/

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