The possibility of disposing of assets in the event of death by means of a will is provided for by articles 1857 and following of the civil code. The clause appointing a special guardian in the will is extremely important when one intends to leave assets to a minor. This is because the special guardian will have the task of administering and protecting these assets on behalf of the minor, until he reaches the age of majority, guaranteeing the protection of the interests of the heir. This appointment is a way to ensure that the assets are used responsibly and for the benefit of the child, as required by the Civil Code.
However, it is important to remember that the Civil Code establishes some requirements for the appointment of a trustee, including:
- Be of age and in full enjoyment of civil rights.
- Have the legal capacity to administer the assets and fulfill the obligations inherent in the office of trustee.
- Be a reliable person, who has the ability to act in the best interests of the child.
The special trustee appointed to manage property left to a minor is legally held accountable for its management. This responsibility is a fundamental duty to guarantee transparency and the protection of the interests of the minor heir.
It is important to highlight the possibility of appointing a guardian other than the spouse, i.e. a third party in charge of managing the assets of a minor or incapacitated person who is not the spouse of the testator (person who drew up the will).
This appointment is particularly important when the spouse is not considered the best choice to act as guardian, due to conflicts of interest, lack of capacity or other reasons that could harm the interests of the minor or incapacitated heir.
The appointment of a guardian other than a spouse can occur in various situations, such as:
- Conflict of Interest: If the spouse of the testator has conflicting interests with those of the minor heir, such as in cases of divorce, separation or family disputes, it is advisable to appoint an independent liquidator to avoid possible conflicts of interest.
- Incapacity of Spouse: If the spouse is unable to properly manage the minor heir’s assets due to illness, mental disability, or other reasons, a miscellaneous trustee may be appointed to ensure proper management of the assets.
- Tester Preference: The tester may simply prefer to appoint another trusted person as a trustee, regardless of parentage, if they feel that person is a better fit for the role.
- Legal Prohibition: In some jurisdictions, the law may prohibit a spouse from acting as a fiduciary under certain circumstances, such as when there are clear conflicts of interest.
The appointment of a trustee other than a spouse must be done in accordance with local laws and regulations and it is advisable to consult a probate attorney to ensure that the process is carried out properly. The main objective is always to protect the interests of the minor or incapable heir, guaranteeing responsible and impartial administration of the assets left by the testator.
*Samira de Mendonça Tanus Madeira is a lawyer (OAB/RJ 174.354), specializing in civil procedure law, succession planning and real estate law. Extension in contract law; From Trust to Promise to Contract – Harvard University and Human Rights and New Technologies of the University of Coimbra. Partner of Tanus Madeira Advogados Associados, founded in 1983, with offices in the cities of Rio de Janeiro and Macaé-RJ
Source: Terra
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