Steve is a widower and has a son named Jason who is 10 years old. He is now married to Janice who is a divorcee and single mother. Her son Joe, from her previous marriage, is now 8 years old. After Steve and Janice were married, they were blessed with another son named Jack who is now aged 5. Steve is a businessman while Janice is a homemaker taking care of all the three sons. They always noticed that Jason and Joe are constantly fighting with Jack over every little thing. Then one day Steve receives a call from Janice and she says to him: “Honey! Your son and my son are beating our son. So can you come back and sort out the problem”. With such a family issue staring at them, Steve and Janice decide that they should do some planning for their children if something like death occurs to either one of them or even to both of them. But the question is how to go about doing it?
The solution for both of them is to write a will. However, with their current position, the first important matter in the will is the choice of the executor/trustee. They can choose each other to be the first executor/trustee in their respective wills and then a trustee company like Rockwills Trustee Bhd to be the substitute executor/trustee. Because of the children’s ages, the executor/trustee appointed must manage the estate for Steve or Janice for a longer period, probably until Jack attains the age of 22. Thereafter, only the balance of the estate can be distributed to all their three children. Therefore, the best alternative is to appoint a trustee company like Rockwills Trustee Bhd to be their main executor/trustee because it has the expertise, impartiality, professionalism and most importantly, perpetual existence.
Having the appointment of executors/trustee in place, then comes another important issue, which is the appointment of a guardian. Since Steve is not the natural father of Joe, Janice being a divorcee must state in her will that Steve must be appointed as guardian of Joe if she wants Steve to take up the responsibility. Having said that, if for some reason Joe’s natural father was to appear and fight for custody over Joe, then legally Joe will be returned to his natural father if his father is proven to be capable of looking after his welfare.
On the other hand, Steve being a widower and presuming that he doesn’t have many family members to rely on must also appoint Janice to be guardian of Jason since she is not the natural mother of Jason. In the case of Jack, Steve and Janice are the natural parents. Therefore, their appointment of guardian for Jack is only for reasons of sudden death occurring for both of them. With the appointment of the first level of guardian in place, then the appointment of a substitute guardian for all their three children would depend on the relationship between their children and relatives of both Steve and Janice. This can mean Jason, Joe and Jack from their current age until 22 years old could probably be under the care of different relatives if Steve and Janice were to pass away together.
Since all the children are still minors, Steve and Janice could choose to distribute their estate to each other first and if both them are not around, then their respective movable and immovable estates can be distributed to their three children. However, when their estate goes to minors, they would not be able to receive it due to their age. As such, there must be a clear instruction in the form of a testamentary trust in both their wills specifying the allocation of funds from the estate for their children’s monthly living, medical and education expenses. On top of that, it is also important to specify the duration of the trust. In other words, the trust could end when the youngest child attains the age of 22 and only then the balance of the estate can be distributed to all their three children. That is the reason why one has to seriously consider appointing a trustee company like Rockwills Trustee Bhd to be the executor/trustee of the estate judging from the duration of the testamentary trust.
Peter Lee is an Associate Estate Planning Practitioner (Wills & Trust) with Rockwills International Group. He is also an Islamic Estate Planner providing Wills & Trust services for Muslims. He is based in Ipoh and can be reached at: 012-5078825/05-2554853 or firstname.lastname@example.org.