What will happen to my children if I die?

It’s not really a question that is discussed very often; it’s a very uncomfortable thought to consider the possibility that our children will be orphaned before they reach adulthood, but it is worth considering the issue. This is because, with the right preparation, there are many things that can be put in place to protect your children, such as nominating a guardian, and also an administrator of their inheritance and estate until they come of age and can manage on their own. Here I will discuss in general terms, what are the options applicable under Spanish law.
When a child is orphaned, the Civil Code establishes a priority among family members as to who should be appointed guardian. The appointment of a guardian must be made through the appropriate legal proceedings, which sometimes, (where more than one family member is interested in being appointed guardian of the minor) can cause serious and unpleasant disputes within the family or families of both of the deceased parents. Therefore, it is worth addressing this issue in advance to avoid this unhappy and unpleasant scenario.
The best way for parents to avoid a fight for custody of their children is simply to have a Will drafted that clearly defines who should be appointed guardian for their children. If you have already done this, then your choice described in the Will takes precedence, and will avoid the court proceedings that sometimes can get contentious.
Therefore, with a professionally drafted Will that appoints a guardian, the parents are assured of electing the person they want to be the guardian of their children and avoid any legal dispute within the family. It is of course a good idea to discuss with your chosen guardian, so all parties are aware of your wishes.
With regards to the estate of a minor, it is possible to appoint an administrator who may be someone other than the appointed guardian. If a specific appointment is not defined, then the guardian will also assume the administration of the child’s property. Also, you can appoint an administrator of the child’s property to be inherited, even in cases
where the other parent lives and has the custody of the children. This solution is usual in cases of marital crisis as the best measure to ensure that children receive property by inheritance from one parent, if there has been a separation or divorce before their death. A third party can be appointed as an administrator and this person has a similar role to that of an English trustee. So, as you can see something as simple as making a Will can take care of many complex issues, in addition to the obvious one of appointing heirs. Above all, a Will is a very useful way to avoid unpleasant conflicts in the event that a child is orphaned. If you wish more information on this particular topic or would like to discuss any matter raised therein, contact Rob Westwater or Reyes Gomez Llorente, De Cotta McKenna y Santafe, on 952 527 014.
Offices in Mijas Costa, Coín, Nerja, Granada and Tenerife.
De Cotta McKenna y Santafé
Calle Diputación, 6-2º-A
29780 Nerja, Málaga, Spain
Tel.: (+34) 952 52 70 14 – Fax: (+34) 952 52 34 28
Email: robwestwater@decottalaw.net – website: www.decottalaw.com