Have you ever wondered who should take care of your underage child after your death?
Though this situation may be unthinkable, it is essential that you do everything to ensure his or her adequate care. The solutions provided to parents are usually not sufficient to ensure this.
Below, we have set out:
Start by making a will in which you arrange custody of your child. Let us advise you which points of attention should be taken into account.
In a will, one may set out how assets should be divided amongst appointed beneficiaries, also known as heirs. However, apart from such provisions mainly relating to wealth, one may also include clauses concerning:
It is of utmost importance that parents of minor children have a will drawn up to prevent certain cumbersome situations from arising. Let me explain this in detail to you in the remainder of this article.
In the Netherlands, having custody (also known as parental authority) of children means that you have the duty and right to care for your underage children. Among other obligations, this includes taking responsibility for the children’s safety and promoting the development of their personality.
By law, a mother who gives birth to a child has custody of the child. If the father or the co-mother is married to or has a registered partnership with the birth mother, he or she is also given child custody automatically. Parenthood of children who are born out of wedlock has to be acknowledged by the other parent, who is not the birth mother, in case that person is not married to or has a registered partnership with the birth mother. Only after acknowledgement at the municipality will that person attain custody of the child involved.
Based on the inheritance law of the Netherlands, parents with custody of their children may appoint a custodian in their will. In spite of generally being a document in which somebody explains as to how property should be divided, a will can namely also be used to indicate who should acquire authority over minor children.
It is absolutely crucial that you make a will for the arrange of custody of your children for the following reason. Custody of children ends when the parent(s) with parental authority die(s). If the child has two parents with custody, the surviving parent will have sole custody of the children.
If there is no other parent with custody, the juvenile court is authorized to appoint a custodian. The court will explore the possibility of placing the children under the care of relatives, but it may be unable to contact relatives to assess whether they can properly function as the children’s custodian, if they live abroad. In that case, children will be placed under the custody of the Youth Care Office, which will place them under the care of a foster family. Appointing a custodian in a will would prevent this from happening.
Apart from appointing a custodian, you can also place the inherited assets under financial administration. During this administration, a person disposes of inherited assets in the children’s best interest.
In other words, the administrator is the children’s financial carer, whereas the custodian is somebody who is responsible for the upbringing. The administrator does not have to be the same person as the custodian.
Though custody of a child ends once adulthood is reached, financial administration may continue after the child reaches an adult age. It is, thus, a tool to keep children in check until they reach an older and wiser age than 18.
As an internationally oriented notary firm, Westport Notarissen possesses over years of experience in providing expat clients with advice on creating their will and arranging the custody of their minor children. We take pride in the fact that we are able to prepare the will for you in English. The appointment for the signing of the will could also take place in the English language, among other languages we can speak. We will not have to arrange a translator or an interpreter.
Below, we have listed a few frequently asked questions by individuals who contact us.
Why would you want to arrange child custody in a will?
A will would be needed to deviate from the statutory regime concerning custody of minor children that would otherwise be applicable to you by law after your death. In that case, the court would decide who should be your children’s custodians after your death and the other parent’s death. To prevent this, it is necessary to make a will in which you appoint a custodian.
Is a made abroad in which a custodian is appointed also valid in the Netherlands?
Under the European and international regulations that also apply to the Netherlands, in principle, a foreign will be formally valid if they comply with either:
Therefore, an appointment of a custodian in such a will would also be valid. However, to be sure that there are no hurdles whatsoever, it would be sensible to have a will created in the Netherlands as well in which the issue of child custody is arranged.
Does the will with the child custody provision have to be in Dutch?
The will containing the arrangement concerning child custody does not have to be in Dutch for it to be valid. It could also be drawn up in the English language or any other language the person making the will and the responsible notary understand.