One can nominate a guardian or guardians of your minor children in your Will who can be appointed as such upon the death of all legal guardians. When you nominate more than one person to be the guardians of your minor children, they will be co-guardians and will have to make all the decisions jointly. However, if you do nominate co-guardians and one person does not accept the guardianship then the remaining person will be appointed as the sole guardian. Guardians that are nominated in your Will have to accept the guardianship in order to be appointed as such by the court.
If no guardian is named in your Will or the guardian that is named is unable to accept the guardianship, then the person or family member who does want to be the guardian has to apply to the court to be appointed as the guardian of your minor children. This is an expensive and time-consuming process.
It is advisable to nominate alternative or failing guardians for you minor children in your Will. If circumstances have changed and the person you nominated is no longer able to be the guardian of your minor children, then there is another person who you have nominated. This will ensure that your wishes regarding your minor children are known to your friends and family upon your death.
There are numerous practical implications to consider when nominating a guardian of your minor children and especially when those guardians are not resident in South Africa. If the nominated guardians live outside of South Africa your minor children would have to relocate to another country away from their friends and support structure to go and live with the guardians and considering the guardians reside in another country, they might not know them that well or be comfortable around them. If the inheritance for your minor children is in trust in South Africa, it may be difficult for the guardians to get access to the South African trust funds to apply to the benefit of the minors and to externalise the funds to the country where they are living. Reporting obligations to tax authorities in that country may also arise because of funds in a South African Trust for the benefit of the children.
It is recommended that you have a conversation with the person you want to appoint as guardians of your minor children to ensure that they are able and prepared to be the guardians of your minor children. They should also then advise you if their circumstances change and they are no longer able to be the guardians of your minor children so that you can amend your will accordingly. You can write them a letter of wishes wherein you set out your wishes regarding for example the education you would like your children to receive and if there are certain things you would like your minor children to receive at certain ages. Your Will should regularly be reviewed and updated if necessary, to see if circumstances have changed.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)