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Parents: Do not make this mistake in your will

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How does the Guardian Clause in your will protect children?

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Caring for your priceless assets – your children.

Very few Canadians have a will, fewer have a currently updated will. Without a will, you cannot outline directives regarding your most priceless asset – your children. A will allow you to clarify your selection of a legal guardian for your children. Here are some steps to take in preparing for the transfer of parental responsibility while planning your will with your lawyer.

Choose an individual to be the guardian

  • Perhaps your parents, a brother, a sister, or a friend could assume the appropriate parental role in your absence. Consider living quarters, age, health, their ethics, financial means, and their current family stress load. Talk to them and get their approval first. Do not simply assume your parents or siblings will take the children.
  • Select a contingent guardian in case the first choice denies the guardianship, takes ill, or dies.
  • Ensure that the guardian will have sufficient capital to provide for the children, which may include the need for life insurance. Know your current financial net worth and how much income it can generate for your children.

The guardian clause is only an interim appointment.

In your will, you can insert a provision that you are appointing someone as your child’s guardian (which most lawyers do). It is important to remember that any such appointment is only good for 90 days as it is an interim appointment only. Therefore, it allows all interested people to get before the court (which makes the final decision about who will be the guardian). Why include the guardianship clause if it is only an interim appointment? Because it is strong evidence of who the parents wanted the guardian to be, though it is not determinative. That is up to the court.

Include these parameters in your will.

  • Choose a trustee to invest and manage any money that your children may inherit
    • Consider having adequate life insurance to cover the children’s financial needs so as not to burden the new guardian.
  • Express your financial directives regarding the maintenance and education of your children, and the age when they may personally receive the balance of the inheritance.
  • Update your directives when your circumstances change, reflecting for example, changes in your net worth; a new child in the family; a deceased beneficiary or desired guardian; or special wishes regarding the transfer of certain assets to specific children.
  • Choose a competent, informed, and trustworthy executor with the patience to follow time-consuming legal detail.

 


 

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