A will for minor children: securing your children's future legally
What is a children's will, and who needs one? Guide to wills with minor children in Denmark: custody, guardianship, inheritance, asset management, and what you can and cannot decide.
Thor, Dokumentkonsulent
If you have minor children, the most important thing you can do for them, legally speaking, is to make a will. Not primarily for the money, but to decide who is to look after them if you and your partner both die while they are still young.
A "children's will" (børnetestamente) is not a separate document, but a term for a will that contains provisions about your minor children's future. It is one of the most profound expressions of parental care and one of the most frequently neglected legal documents in Denmark.
What is a children's will?
The term "children's will" is used for a will that, in addition to the usual provisions on inheritance, contains:
- Recommendations on custody and guardianship: who is to look after your children?
- Inheritance provisions for minors: when and how do they inherit?
- Separate-property provisions: ensuring the inheritance does not enter the community property of the child's future spouse
- Any wishes on upbringing, religion and education
It is important to understand what you can decide in a will, and what lies outside it.
What happens if you die without a will?
If you die without a will, your estate is distributed under the intestacy rules of the Inheritance Act. For parents of minors this means:
- Your spouse/registered partner inherits half, your children share the rest
- If you have no spouse, the children inherit the whole estate equally
- Your children's inheritance is administered by the surviving parent (if both parents die: by a guardian appointed by the Agency of Family Law)
And custody? If both parents die, custody and the appointment of a guardian are decided by the Agency of Family Law (Familieretshuset) on the basis of the child's best interests. Your wishes are taken into account if you have expressed them in writing.
Custody and the will: what can you decide?
Here is the most important misunderstanding about children's wills: you cannot decide in a legally binding way in your will who is to have custody of your children.
Custody is decided by the Agency of Family Law and the courts on the basis of what is best for the child. This is mandatory Danish law (Parental Responsibility Act, section 14 onwards).
What you can do:
You can recommend a particular person as the new custody holder or supervisory guardian in your will. The Agency of Family Law is not bound by your recommendation, but attaches great weight to the parents' wishes if they are expressly and in writing set out in a notarised document.
Make your recommendation as specific and reasoned as possible:
"If both parents die, we strongly recommend that custody and supervisory guardianship of our child [Name, date of birth] be transferred to [Recommended person's full name, CPR number], who is the child's maternal aunt and knows the child intimately. [Person] is aware of this role and has agreed to take it on."
Have a conversation with the person you point to. They must know about it, want it and accept it.
Who is the child's guardian?
If a child loses both parents, the Agency of Family Law appoints a guardian to represent the child in legal and personal matters until the child turns 18.
The guardianship task can be split:
- Personal guardian: Takes care of the child's care, upbringing and daily life
- Residence guardian: The child lives with this person
- Property guardian: Manages the child's inheritance
Your will can recommend that one and the same person is both personal and property guardian, or that the tasks are split. Splitting is relevant if the person best able to look after the child is not the person best at managing larger funds.
The child's inheritance: special rules for minors
If a minor child (under 18) inherits, special rules apply to the management of the inheritance:
Assets of DKK 150,000 or more: an approved asset-management department
If the child has assets of DKK 150,000 or more, the guardian may not leave the money in an ordinary bank. The assets must be managed in an approved asset-management department (godkendt forvaltningsafdeling), that is, a special bank department approved by the Ministry of Justice to manage funds for persons under guardianship. The management takes place under the Agency of Family Law's supervision, and the guardian needs the Agency of Family Law's approval to use the assets.
Assets below DKK 150,000 are placed in a blocked account in the child's name under the guardian's management.
You can, in the will, influence how the inheritance is managed, for example by specifying that a particular asset-management department is to be used, or that part of the inheritance is placed at the child's free disposal. Far-reaching exemptions from the management rules do, however, require that they stay within the framework of the Guardianship Act and the Agency of Family Law's practice.
Inheritance as separate property
It is possible, and highly advisable, to determine that your inheritance to your children is to be separate property. This means the inheritance does not enter the community property of the child's possible future spouse and cannot be divided on divorce.
You can choose:
- Full separate property: The inheritance is always the child's alone, on divorce and on death
- Divorce separate property: The inheritance is separate property on divorce, but enters the marital estate on death
Separate property is not an expression of mistrust of the child's future partner. It is insurance against unforeseeable life circumstances.
When is the inheritance paid out?
As a starting point, the child gains control of the inheritance when the child turns 18. But you can, in the will, set a deferred payout time by tying up the inheritance:
"The inheritance to [Child's name] is paid out in three instalments: 1/3 at the age of 18, 1/3 at the age of 21 and the remaining 1/3 at the age of 25."
Deferred payout is popular because many parents do not want an 18-year-old suddenly to receive a large inheritance and make poor decisions. Note that a forced-heirship share can only be tied up within the framework of the Inheritance Act.
The validity of the will: requirements you must observe
A will with provisions about children is valid if it meets the general formal requirements of the Inheritance Act:
Notarial will (recommended)
Signed before a notary at your local district court. The notary confirms your identity and capacity. The safest and most enforceable.
Witnessed will
Signed in the simultaneous presence of two witnesses. The witnesses may not themselves inherit and must be over 18.
For a children's will, the notarial will is recommended. It is the strongest evidence that it is your authentic wishes, and the Agency of Family Law attaches the greatest weight to it.
Register the will in the Central Register of Wills via the notary. This ensures that estate administrators and the Agency of Family Law can find it when necessary.
See our will guide for the general requirements for making a will.
The special situation of cohabitants
If you are not married, further complications arise:
Custody
If you have joint custody (registered or agreed), and one of you dies, the other automatically takes over full custody, regardless of a will.
If both parents die, you must have expressed your wishes clearly in the wills.
The cohabitant's inheritance
A cohabitant inherits nothing under the law, regardless of duration. If you want to provide for your cohabitant, it must be stated in the will. Be aware of the forced-heirship share: your children are entitled to 25% of your estate, and that cannot be willed away.
A cohabitant can be left the freely disposable share, that is, up to 75% of the estate, depending on your family situation.
The specific content of the will
Example of typical children's-will provisions
1. Distribution of the inheritance:
"Our community property/share of the estate is divided equally. Our children [Name 1, date of birth] and [Name 2, date of birth] inherit equally from our freely disposable estate after the last of us to survive."
2. Separate property:
"The inheritance that passes to our children is full separate property for them and does not enter the community property of a future spouse on divorce or death."
3. Asset management:
"It is determined that inheritance funds passing to our minor children are managed with [Person's name] as property guardian, within the framework of the rules of the Guardianship Act and under the Agency of Family Law's supervision."
4. Recommendation on custody:
"It is our clear wish that custody of our minor children on the death of both parents be transferred to [Name and relation]. We ask the Agency of Family Law to honour this wish to the greatest possible extent."
5. Deferred inheritance:
"Inheritance to our children is paid out in two instalments: half at the age of 18, the rest at the age of 25."
What does a children's will cost?
| Solution | Price (approx.) |
|---|---|
| Lawyer (single will) | DKK 3,000 to 8,000 |
| LegalDock template + notary fee | DKK 500 to 800 |
| Registration in the Central Register | Included in the notary fee |
Two wills, one for you and one for your partner, are not double the price. They mirror each other and are best made at the same time.
When should the will be updated?
A will is not a document you write and forget. Update it on:
- A new child (must be added explicitly)
- A move, a new address can change which district court is relevant
- A death, a recommended person has themselves died
- Divorce or separation
- A new partner/cohabitant
- A larger inheritance, the purchase of real property or a business
Frequently asked questions
Can we make a joint will for both parents?
In Denmark, spouses can make a mutual will, one document that governs both spouses' inheritance. Cohabitants need two separate wills. A mutual will for spouses is practical, but it can complicate changes: if one revokes it, whether the other party is informed depends on the provisions.
What if the recommended person does not want to look after our children?
The Agency of Family Law cannot force anyone to take over custody. If the person you have recommended does not want to, the Agency of Family Law seeks other suitable candidates, normally within the family. This is the primary reason to have an open conversation with the recommended person before you write the will.
Does the will apply to adopted children?
Yes. By law, adopted children are placed entirely on an equal footing with biological children as regards inheritance.
Can we decide that our child may not live abroad?
No. Custody and residence are decided by the Agency of Family Law on the basis of the child's best interests. You can express a wish for the child to remain in Denmark, but it is not legally binding.
What happens to the inheritance if the child dies before we do?
In a will you should state substitute heirs, what happens to the inheritance if an heir does not survive you? For children the natural answer is: the child's descendants (that is, your grandchildren) or the other heirs equally.
Is a handwritten letter enough?
No. A handwritten letter is not legally binding as a will in Denmark. It requires either two witnesses or notarial confirmation. A handwritten letter can carry moral weight and can form part of the Agency of Family Law's assessment, but it is not sufficient.
Conclusion
A children's will is the most concrete action you can take to protect your children if the unthinkable happens. It gives you the opportunity to express your wishes about who looks after them, when they inherit, and on what terms.
It is not a document you make "at some point". It is something you make now.
The content of this article is for guidance only and does not constitute legal advice. Consult a lawyer for advice on your specific situation.
Related templates
This article is for general guidance only and is not individual legal advice. LegalDock documents are templates — consult a lawyer about your specific situation.