Estate planning isn’t always the first thing young families think about (because – let’s face it – kids take up a lot of energy and time!),but it’s critical to have a plan in place if the unthinkable happens. When children enter the mix, there are additional considerations that testators (will-makers) should be aware of regardless of their age.
With Ontario’s Make-a-Will Month running throughout November, we’re covering the benefits of estate planning for individuals at various stages of their lives. While there is no better time than the present to consider estate planning, young families should pay particular attention to their estate documents. Today, we’ll be covering why young families can’t afford to forego estate planning.
Providing for Minor Children
It won’t surprise you to hear that the main benefit of estate planning for young families is to have a plan in place for your children’s care in case something happens to you or your spouse or co-parent.
What Happens if I have Minor Children and I Pass Away without a Will in Ontario?
If you pass away intestate (without a will) in Ontario, the Succession Law Reform Act, R.S.O. 1990, c. S. 26 provides direction regarding how your estate will be handled. Typically, if your spouse survives you, they will be entitled to your assets. If your spouse does not survive you, your children will be entitled to your assets.
It’s important to note two things:
First, be aware common-law spouses do not have the right to inherit from an intestate estate (so, while a married spouse will be considered for distribution under the Succession Law Reform Act, a common-law spouse will not).
Second, the Succession Law Reform Act rules do not apply to the guardianship of your minor children.
Why Wills Are Critical for Young Families
While your children still stand to inherit your asset if you die intestate, without a will, you cannot make decisions about their care or guardianship after you pass. As a result, estate planning is particularly important for families with young children.
Guardianship for Minor Children
It is vital to make arrangements for the care of minor children in the event that you and your spouse pass away. As previously noted, if your spouse survives you, they will become the sole guardian of your children. However, if both you and your spouse pass away, someone else will need to step in.
In Ontario, you can appoint one or more individuals to be the guardian or guardians of your children. That individual (or those individuals) will have all the same rights and responsibilities as a parent concerning your children, so it’s critical to think carefully about who you appoint. Note that this arrangement lasts for 90 days in Ontario, after which the appointee(s) will have to apply to a court for permanent custody of your children.
As a requirement, the individual or individuals you appoint to be the guardian(s) must consent to their appointment. It is, therefore, crucial to speak with your appointee(s) in advance to ensure that they understand your wishes and consent to the arrangement.
Guardianship for Children’s Property
Children cannot inherit property until they reach the age of majority (18 in Ontario), so depending on your estate strategy, you may need to think about guardianship of their property. You can appoint an individual to become the guardian of your minor children’s property. This arrangement helps care for your children’s property until they are old enough to do so themselves. For instance, a property guardian will be expected to make decisions for the children’s benefit (e.g., investing money).
Creating a Trust for Minor Children
Since children cannot inherit property until they reach the age of majority, creating a trust for them may be prudent, depending on your situation. With a trust, you appoint a “trustee” to hold the funds ‘in trust” for your children for a certain period of time or in a certain manner. For example, if you do not want your child to receive a lump-sum payment when they reach the age of majority, you can specify that the trust funds will be paid out in installments or that the child will receive the trust funds at a later date (for example, on their 25th birthday). There are countless strategies for trusts that go far beyond the scope of this blog post, and we recommend consulting with an experienced estate planning lawyer to determine the best strategy for your needs and to avoid stressful trust disputes amongst your family in the future.
Caring for a Common-Law Partner
As noted above, common-law partners do not have the right to inherit from an intestate estate. If you are in a common-law relationship and have minor children, it’s critical to have a will in place to ensure your common-law partner is cared for after you’re gone.
Caring for Pets
Pets are an important part of many young families’ lives (often just as important as other family members!), so it’s wise to consider how your pets will be cared for after you are gone. Chances are, if you have young children, you will want the pets to stay with the children. While you cannot leave money directly to your pet, you can designate a caretaker in your will and set money aside for their care. As with a guardian (or any appointees), it’s important to discuss your wishes with your caretaker beforehand to ensure they consent to the arrangement.
Additional Notes on Estate Planning for Young Families
In the current climate, many individuals are anxious about their finances and the future, generally. This is especially true for young families, many of whom are adapting to the costs associated with raising children or dealing with other substantial costs, such as a home. Regardless of your situation, the best way to protect your family in the event of the unthinkable is to make your wishes known by creating your estate plan today.
Contact the Toronto Estate Lawyers at Derfel Estate Law for Guidance with Wills
If you need help with an existing will or are considering applying to challenge a will, contact the estate lawyers at Derfel Estate Law before you proceed. We can help you determine whether you are eligible to bring such a claim, help you understand your options and rights, and represent you throughout the challenge process. To find out how we can help, call our office at 416-847-3580 or contact us online to schedule a consultation.