Parents, Children and Wills
Nov. 8, 2013
If I die without a will, who will take care of my children?
If one parent dies, with or without a will, the surviving parent becomes the guardian of the children. Things aren’t so simple for families where each parent has children from previous relationships.
When the last parent dies, the children will live with the guardian set out in the last parent’s will. If the last parent dies without a will, then the provincial government becomes the guardian of the children.
What if I don’t have a will, but I want a family member to become the guardian of my children?
A will is the sole tool for expressing your desires for who will take care of your children after you die. Without a will, after the death of the last parent, the government becomes the guardian. A member of your family might be selected as a foster parent, but will not become the guardian unless they apply to court to adopt the children.
Applying for adoption in this manner may be expensive, time consuming and success is not guaranteed. In contrast, appointing a guardian in a will is much cheaper than court proceedings, and ensures that your wishes are followed, without causing stress or a financial burden for your loved ones.
If I die without a will, will my money go to my children?
When an adult dies without a will, their assets (money, real estate, personal possessions) are distributed according to legislated rules. When a parent dies, a certain amount of that parent’s assets are automatically given to the parent’s spouse. After that fixed payment to the spouse, the remainder of the assets are divided among the same spouse and all of the parent’s children. This division includes any children from previous relationships.
However, while the last parent’s property will be divided among the children, any money left to children under 19 will be held in trust by the government.
What happens if the government holds money in trust for my children?
The government uses some of the money to pay the guardian of the children for routine expenses, but is very conservative in how the money is used. When the child turns 19, any remaining money is paid to the child. The government strives to keep as much of the original money as possible until the child is 19, which may prevent the guardian from providing opportunities to your children, such as travel, or expensive sports and hobbies.
How can I make sure that my money is available for raising my children?
In your will, you can create your own trusts for you children, and designate someone you can rely upon as the trustee, instead of the government. You can also give this trustee the discretion to spend money on activities that you want your children to participate in.
It’s important to remember that this is your money, and it will be spent according to your wishes. Your will is the tool that is used for expressing your wishes.
I don’t want my children to receive a large payment when they turn 19. What can I do?
In your will, you can specify specific terms of the trust for your children. You can require the trustee to pay your children periodically, like an allowance, or lump-sum payments after graduating from high school or university. You can pick any age, over 19, at which the trustee will give the remaining trust funds to your children.
Any trust provisions must be written carefully. Hiring a lawyer is a good idea, in order to ensure that your wishes are followed.