Who will guard the guardians?

The Guardian’s Fund receives and manages inheritance money on behalf of people who are legally incapable or do not have the ability to manage their own affairs. This includes minor orphans, unborn heirs, and missing or absent persons, i.e. If you die without a will, your child’s inheritance will end up here.

The approximately R16 billion fund (at last count) made headlines again recently when it was found in April that about R18 million had been misappropriated from the fund.

The Guardian’s Fund falls under the Master of the High Court and, thus, the Department of Justice and Constitutional Development. The Department of Justice administers the fund. All money is invested with the Public Investment Corporation.

 Four officials of the Guardian’s Fund were suspended after the theft was discovered.

Payments were frozen with the effect that more than 2 600 of 5 035 beneficiaries who rely on the fund were yet to be paid their money on June 26. 

The theft of the R18 million is the third one in as many years.

Previously, high-profile misappropriation took place in 2001 when a Master of the High Court (Mahikeng) stole hundreds of thousands of rand from the Guardian’s Fund. In December 2013, a full bench of the Appeal Court confirmed a High Court decision and effectively sent the previous Master to jail for 10 years. The Assistant Master was also found guilty of theft and sentenced to an effective five years in prison.

It's a frightening thought that your child’s inheritance could be exposed to this sort of maladministration. So, what are your options?

Testamentary Trusts

There are certain assets that are not ideal to leave directly to your minor children (under the age of 18), such as a house, cash, shares, etcetera. Besides being impractical, it might be risky since it could get squandered. Minors may own property, but one of the reasons why it is impractical is because the minor will have to get permission from the Master of the High Court if they want to sell it. A minor can inherit cash from life insurance, but Capital Legacy has seen that the guardian can squander the minor’s inheritance since they are in control. We like to think that all guardians are responsible and will act in the best interest of the minor, but this is unfortunately out of your control. So, without setting up a vehicle for them to inherit, such as a trust, their inheritance will pass to the Guardian’s Fund or their guardians to be the custodian until they turn 18. Claiming money from the Guardian’s Fund is a laborious process and, as indicated, the risk factor is growing bigger.

Capital Legacy is South Africa’s leading provider of wills and estate administration and deals with tens of thousands of wills and close to two thousand estates per year. As such, the company’s advice to all parents is to make provision for the set-up of a testamentary trust for their children’s inheritance in their wills.

“Most people don’t think about the practical implications of a minor child inheriting money. They think that making provision for money through life insurance is enough. The reality is that someone needs to still pay for school fees, food, rent, clothes, sports, and travel, etcetera. Someone will also have to ensure that money is invested wisely and that it is enough to help the children kick-start their adulthood when they become majors,” says Deenisha Nadesan, executive director, estates & fiduciary services at Capital Legacy.

Testamentary trusts play a crucial role in safeguarding the financial security and well-being of beneficiaries. These trusts are established according to a person’s last will and testament and come into effect upon their passing, providing a framework for the management and distribution of assets.

Guardians

In your will, you should indicate who you want the guardians of your minor children to be should both you and your spouse pass away.

Just remember that it is not a law that the guardians, as nominated by you, will be the guardians of your children when you die. They will still be investigated to ensure that they are fit and proper to take care of your children before the Children’s Court makes it official by making it an order of the court.

Your will is also where you must stipulate who you want the executor of your estate and the trustees of the children’s trust to be.

Your will should reflect how much and what assets you want to leave to your beneficiaries. It also instructs the trustees on the age at which your children should inherit your money and assets. 

As previously mentioned, in a testamentary trust, everything is about what you have specified in your will. The conditions of your testamentary trust are set out in your will.

A trust is typically expensive but could cost your estate nothing if you have a Legacy Protection Plan^TM (LPP^TM) from Capital Legacy. For a small monthly amount, the LPP^TM will see to it that your estate is indemnified against legal costs when you pass away. Your trust, as specified in your will (which Capital Legacy will draft for you for free), will ensure that your children are taken care of for as long as you specify.

Knowing that your children and their inheritance will be looked after upon your passing will help any parent rest more peacefully at night. 

Don’t leave your child’s inheritance exposed to risk, draft or update your will today to ensure the correct structures are in place to safeguard their legacy. The team at Capital Legacy are experts at this and are ready to help you at any time, or you can speak to your financial advisor.