Minor’s inheritance vs. maintenance without a will or trust
In an ideal world parents will live to an age where they can see their kids grow up, marry and have kids of their own. Unfortunately, this is not always the case. When a parent passes away and leaves behind a child that is still legally a minor (i.e. younger than 18), one would hope that there are plans in place to see to the care for him or her either in the form of a will or a provision that has been made for a trust. The fact is that even if no such plans are in place, there is still a maintenance obligation to the child, surviving spouse or former spouse.
It is generally true that you can bequeath your assets as you see fit. If you wish for your minor child to inherit from your deceased estate, you have to stipulate it in your will. Legally, a minor cannot enter into a contract without the consent of their parent or guardian. They also cannot inherit as adults would and the minor’s inheritance needs to be protected. This is where the provision for a trust comes into play. A parent can create a trust for their child while they are still alive or stipulate the creation of one in their will. The trust is managed by a trustee and though his/her actions are regulated by law, it is still very important to carefully choose the right trustee that will look after your child’s best interests. The trust can own property, inherit money, or receive donations. The specifications of the trust will determine what happens to its assets when the child reaches legal adulthood. The child’s maintenance can also be paid from the trust. When there is no will or provision for a trust, however, it gets a bit trickier.
If the minor does inherit from the deceased estate, but yet no provision has been made for a trust, the inheritance will be paid over to the Guardian’s Fund. This governmental fund falls under the administration of the Master of the High Courts. The child’s guardian may claim maintenance from this fund. This is not ideal as the claiming of funds is an administration-heavy process and Fund administrator misconduct has taken place in the past.
Regardless of whether the minor stand to inherit or not according to the deceased will, maintenance must still be paid, i.e. the minor must still be cared for until he/she reaches the age of 18. If no arrangements for this has been made it could lead to serious disputes over the distribution of the deceased’s estate as the need for maintenance trumps any specifications of inheritance. Maintenance includes the child’s requirements for food, accommodation, clothing, medical needs, education, transport, and entertainment. A child’s maintenance claim ranks behind a creditor’s claim on the estate, but it ranks equally with the maintenance claim of the surviving spouse. If there are not sufficient funds to settle the claims of both the surviving spouse and the dependent child in full, a pro-rata calculation is done.
It is very important to remember that an individual’s maintenance obligations do not pass away with them. It is best to make provision for this in the form of a trust. The absence of one could make the will moot as maintenance takes precedence over inheritance.
What should you do?
Always ensure that you have an up to date will that has been drafted with the assistance of an attorney. Your will should not just stipulate who you wish to inherit your estate, it should also include details as to the maintenance that might need to be paid from the deceased estate.
Contact AED Attorneys to help draft your will. Our passionate and reliable staff will remind you of all the salient points that you need to include to ensure that your wishes are respected after you are gone.
AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.