Should I Specifically Name My Children In My Will?
Taking the time to consider getting a Will is a good first step, given that the majority of Ontarians do not even have one (estimates put the figure at a little over 50% for those not possessing a Will). While you can write your own Will, having a lawyer do it for you can help you navigate the often-underestimated process of drafting a Will, including the many legal considerations and formalities in creating a valid Will.
When contemplating what to include in your Will, your children are likely to be your primary concern. If you were to die without a Will (that is, to die “intestate”), the laws in Ontario are such that, if you are married, a preferential share of $200,000 would go to your surviving spouse, and the remainder of the assets in your estate would be divided between your spouse and any children. Furthermore, your children would have access to this share of the value of your estate the moment they reach the age of the majority, which in Ontario is 18 years of age. For many parents, this is not a desirable outcome, given the understandable concern over leaving large sums of money to children at such a young age. Further, the surviving spouse in this case would have no say in distributing the share apportioned to the children, or at what age they would gain access to the funds.
In a situation where both parents were to die intestate, all of the funds would go to the children, the surviving next of kin, to be available immediately upon each reaching the age of majority. For parents, this would arguably be an even worse outcome in most situations. If this were to happen, the Office of the Children’s Lawyer (OCL) may become involved as it is its mandate to represent the personal and property rights of minors, including estate and trust matters.
In order to address these issues, one solution would be for a lawyer to draft a minor beneficiaries trust (i.e., Children’s Trust) in the Will which would specify the person responsible for the control and payment of the shares to the children, known as the Trustee. The Trustee can be the same person named as the Estate Trustee (Executor) or a different person. The Trust would also specify at what age(s) the children would be entitled to receive their share and for what purposes. This is particularly important where a child has a disability or requires extra care, in which case a Henson Trust is recommended.
Furthermore, intestate deaths make no distinction between minor and adult children. Therefore, if you desire to exclude adult children from an interest in your estate, or reduce the share made available to them for the benefit of your dependent minor children, drafting a Will to specify these distinctions would be advisable. You can also include a guardian clause in your Will for minor children to reflect your wishes and help to ensure that they are properly cared for.
Fortunately, a properly drafted Will, prepared by a lawyer, is able to remedy the problems presented by these eventualities and many others, and can put your mind at ease knowing that your children and loved ones will be properly cared for.
– Charles Lund & Christine Nickel