By Matt Lalande in Estate Planning on March 25, 2018
As Hamilton Personal Injury Lawyers our law firm routinely handles unfortunate wrongful death cases involving parents, both old and young, who die unexpectedly. Surprisingly, many young parents do NOT have an estate plan in place. From our perspective, it seems that a lot of young families:
Hiring a Hamilton lawyer to prepare a simple will should not be excessively expensive, especially if you do not own multiple or cross-border properties. An uncomplicated will that is fairly straight forward, correctly drafted, properly witnessed and notarized should surely not be overly expensive.
For parents – a major reason why you should make a will is to appoint guardians and alternate guardians to care for your child or children in case you and your spouse pass away unexpectedly. In Ontario, the law allows you as a parent to appoint a guardian(s) (and a backup guardians) for your kids in case anything happens to you. If you do not have a will and you do not name a guardian to care for your kids, there is a chance that your children could end up in foster care until a loved one undergoes the effort and expense of applying for a Court hearing to obtain a Guardianship Order. The last thing a kid needs to go through after losing his or her parents is having the Public Guardian and Trustee be responsible for his or her legal and financial rights. All of this unnecessary trouble and expense can be avoided by drafting a simple will. It is important that you name the right people to care for your children, raise your kids the way you would want them to be raised, care for your child if he/she is unwell and ensure that they are raised within the right culture and religion of your parental choice.
It is important to note that naming a guardian is only effective if there is no other person (such as the mother or father of the child) entitled to custody of the child at the testator’s death.
If you are separated or divorced then it is even more reason to have a Will. In this situation, it is important to understand that the custodial arrangements of divorced or separated parents will ultimately be determined by the will. Accordingly, this may be an issue that you may want to discuss with your ex-spouse. It may in fact be something for custodial orders or agreements.
This issue is also important for spouses who are married and have differing views about who should care for their kids. If your these differences persist to the point of you and your spouse naming different guardians for your kids, it will be the Will of the surviving spouse that will mandate who will be the guardians of the children.
After you pass away, the appointment of your guardian is only for 90 days only. Before the 90 days expires, a person must bring an Application for a Court Order to formally appoint him or her as Guardian of your children. When you bring your application, the 90 days is extended until the Will and testament appointment is disposed of. The reason that the law puts this application procedure in place after 90 days is, amongst other reasons, to make sure that your kids are raised by the appropriate people. Imagine if you named your best friends of 20 years ago to be the Guardians of your kids, and you haven’t amended your will since then? If this type of situation happens then your friends and family will more likely than not intervene, bring the application, and ensure that your kids are place with the right loving people who your kids know and trust.
No, if at the time of your death, your child (or any beneficiary for that matter) has not attained a certain age (which we recommend to be over 21) you would direct your Trustee through your will to hold that beneficiary’s share in trust, and invest it, and to use the income and, if necessary, the capital, for the maintenance, education and other benefit of your children. Your will would them direct your executor to give your child the balance of his or her share, when he or she she attains the age of 21(or whatever age you prefer, over the age of 18).
We service families from Niagara to Oakville.
We are more than happy to discuss this with you. Please contact our Hamilton Lawyers 24/7 to learn more.
An estate plan should be 100% affordable for young families – who NEED to put this into place.
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I call Matt my knight in shining armour. After I was struck by a car while cycling and permanently crippled, he fielded all communications with my especially difficult and downright nasty insurance adjuster. Every step of my care was a battle and I did not have the strength to fight alone.
I call Matt my knight in shining armour. After I was struck by a car while cycling and permanently crippled, he fielded all communications with my especially difficult and downright nasty insurance adjuster. Every step of my care was a battle and I did not have the strength to fight alone.
