Question to an expert
Can I name in advance who will look after my child and his property if I die?
What will happen to minor children if one or both parents die? It is not pleasant to think about this possibility, but to protect them, it is better to anticipate it.
On the death of one of the parents, the other is the legal administrator, under the supervision of the judge for certain acts.
On the other hand, on the death of the last of the parents – or in the event of the incapacity of both parents -, if nothing has been anticipated, the judge will appoint a guardian. This one will represent the children and will be in charge of the management of the patrimony during their minority. We speak of “dative tutorship”.
Parents can, however, choose this tutor in a will, or by making a special declaration in an act received by a notary (recourse to a will is the most frequent). One of the parents can take the step, or both. Everyone makes their choice. We speak here of “testamentary guardianship”.
Limited powers
It is desirable to provide for the refusal, incapacity or impossibility of the first designated tutor to accomplish his mission, by choosing a second tutor. We can also provide two tutors: one for the person, one for the heritage.
This decision by the parents will be binding on the family council (at least four people appointed by the judge during the placement under guardianship, and responsible, in particular, for monitoring the guardian’s decisions). The guardian is vested as of right unless the interests of the child require it to be excluded.
Please note, the powers of the designated guardian remain limited. It may be useful, or even necessary, to also appoint an administrator of property, who may be given more extensive powers. For example, the power to sell a property cannot be given to the tutor, even to the so-called “heritage” tutor, but can be given to the property manager.