Your children are among your natural heirs under intestate succession rules, no matter which personal law of the land applies to you. So in case of an untimely demise, especially that of a young or middle-aged person, it may be likely that the deceased may leave behind a minor child as an heir.
Who Is A Minor?
Before we delve deeper into the consequences, let’s define who a minor is: someone who has not attained the age of 18. Just like a minor cannot vote or drive, a minor is not capable of handling property, or entering into contracts (although minors can own and inherit property). Recognising their vulnerability, the law has taken extraordinary steps to protect them.
A Court-Appointed Guardian vs Someone Of Your Choice
A minor must act through his/her guardian to handle and get access to property – even if these are assets that belong to their own deceased parent. Typically, the natural guardian of a child is the father, followed by the mother in case of the father's demise / incapacity. If both parents are not there, the law does not prescribe who the guardian should be. If the parents have not made a Will where they have named a Guardian, then it falls upon the court to appoint a guardian. Anyone who is related to the child or interested in the welfare of the child can petition the court to become a Guardian of the child. In case of conflicting claims, say between a grandparent and aunt, a custody battle may ensue.
This uncertainty can wreak havoc on the minor (who has already probably had their life turned upside down with the loss of their parents) as well as the inherited property. If a custody battle ensues, lengthy proceedings can take place with each side introducing evidence to prove they have the better claim. The minor may be dragged to court and asked to testify, which often is a very traumatic experience.On the other hand, if no one comes forward to act as Guardian, the court must appoint one. Although the court will do its best to find someone who is trustworthy, there is no guarantee that this person will be the correct choice or will adequately look after the child while providing a stable & loving home. One should tread with even greater caution if the amount of inherited wealth is substantial.
The Problem Of Surety
A trickier and lesser-known problem arises under the local laws of certain states. For example, the Bombay High Court stipulates that when applying for documents after demise (e.g. succession certificate or letters of administration), a surety equivalent to the minor's share in the property can be demanded by the court, especially if a guardian has not yet been appointed for the minor. In cases where the court believes that the minor requires significant protection and court oversight, it can keep the minor's property in custody with itself and invest it in specified fixed deposits. This is definitely not the best way to utilize property and can lead not just to an erosion of property value but may also deprive the minor of a truly comfortable existence until they reach majority.
How Can A Will Help?
A Will lets the parents decide who will be the Guardian for their child(ren) after them, and the court will follow this direction. Further, the parents can stipulate which powers they want this Guardian to have/not to have.
In a more common scenario where only one parent has passed away, the deceased’s Will can ensure that property passes entirely to the surviving spouse-parent, so that the child’s interests will be taken care of by the surviving spouse-parent. This ensures that property does not get divided into multiple shares, unless you want to specifically assign a share to your children. In such a case, it is important to note that the shares of assets given to minor children will not be released to the minor and held in guardian’s custody until they come of age. After all, the surviving spouse and parent is the best judge of how to invest and safeguard property for the children’s benefit. The loss of a parent (or parents) can be devastating for anyone, let alone a young child. A minor’s life may be further disrupted in cases when parents pass on without a Will because guardianship and access to assets become complicated and long-drawn out processes. Learn how you can avoid this with a Will
Thus, making a Will is the best way to protect your minor child from a scenario which is unfortunate and hopefully remote but one that, yet, became all-too-common in the wake of the pandemic. Take the first step to ensuring a stable & secure future for your loved ones.
