Writing a Will When You Have Children: A Comprehensive Guide

Writing a will is something that many people put off or overlook entirely. However, when you have children, it becomes even more critical to have a valid and up-to-date will in place. Creating a will ensures that your children will be taken care of and that their needs will be met in the event of your passing. It also provides peace of mind for parents, knowing that their wishes are clearly documented and legally binding.

Fortunately, writing a will doesn't have to be a complicated or expensive process. Online will writing services, such as LegalDeeds, offer convenient and affordable options to help you create a will that meets your specific needs. In this comprehensive guide, we will cover everything you need to know about writing a will when you have children.

Visit our Estate Planning Glossary if any terms in this guide are confusing.

The Importance of Writing a Will When You Have Children

When you have children, having a will is not just important, it is essential. A will protects your children and ensures that their needs are met after your passing. Without a will, your assets may be distributed according to the laws of intestacy, which may not align with your wishes. This could result in your children not receiving the support or inheritance you intended for them.

Additionally, having a will can help avoid unnecessary legal battles among family members. It clearly states your wishes and helps minimize the potential for disputes or misunderstandings. Writing a will provides peace of mind for parents, knowing that their children will be taken care of and that their wishes will be followed.

Key Elements to Include in Your Will

When writing a will, there are several key elements that you should include:

Distribution of assets: Clearly outline how you want your assets and property to be distributed among your beneficiaries.
Naming an executor for your estate: An executor is responsible for carrying out your wishes as stated in your will. Choose someone you trust and who is capable of managing your estate.
Appointing a guardian for your children: This is one of the most crucial decisions you will make in your will. Choose someone who you believe will provide the best care and upbringing for your children.
Setting up trusts for minors: If you have minor children, consider setting up trusts to manage any inheritance they may receive until they reach a certain age.
Leaving instructions for the guardian: It's important to provide guidance to the guardian regarding your wishes for your children's upbringing, including their education, values, and other important aspects.

Naming a Guardian for Young Children

One of the most important decisions you will make when writing a will is naming a guardian for your young children. The guardian will be responsible for their care and upbringing in the event of your passing. It is crucial to choose a guardian who shares your values and parenting philosophies and who you believe will provide the best possible care for your children.

In many cases, the appointment of a guardian is the overriding factor for judges in family court when making decisions about the care of children. Therefore, it is essential to clearly state your wishes in your will.

The Process of Naming a Guardian

When you name a guardian for your children in your will, you are making a recommendation to the court. However, the appointment is ultimately made by a judge who will consider what is in the best interest of the child. Although the judge will take your wishes into account, they have the authority to make a different appointment if they believe it is necessary.

It is important to note that the appointment of a guardian in a will is not permanent and can be changed if circumstances warrant it. For example, if the appointed guardian becomes unable or unwilling to take on the responsibility, the court will look to alternate guardians or decide based on what it believes is in the best interest of the child.

Appointing a guardian in a will is done with a clause similar to this:

In the event of the death of me and my spouse before my children reach the age of majority, it is my wish that Guardian Name be granted guardianship of my children during their minority.

I also wish that before the expiration of ninety (90) days from the date of my death, the guardians will apply to have custody of my minor children and act as the guardian of their property pursuant to the provisions of applicable legislation.

In plain English, the clause says:

You appoint a guardian to take care of your children on a temporary basis immediately after your death.
You request the guardian applies for permanent guardianship before the 90 day temporary period ends.

Considerations for Guardianship

When choosing a guardian for your children, there are several considerations to take into account:

Shared values and parenting philosophies: Choose someone who shares your values and parenting style to ensure consistency in your children's upbringing.
Existing relationship with the children: Consider the relationship your children already have with potential guardians. Will they feel comfortable and secure with that person?
Financial means and living situation: Take into consideration whether the potential guardian has the financial means and appropriate living situation to care for your children.
Impact of appointing a guardian outside of Canada: If you are considering naming a guardian who resides outside of Canada, be aware of any legal, logistical, or immigration issues that may arise.

Naming A Backup Guardian

In some cases, it may be necessary or advantageous to name more than one guardian for your child. This is particularly relevant if you have concerns about the potential breakdown of relationships or if you want to ensure that your child has a stable and supportive environment.

When naming more than one guardian, it is important to clearly establish a primary guardian and an alternate guardian. This ensures that if the primary guardian is unable or unwilling to fulfill their duties, there is a designated backup.

The Role of the Guardian as a Witness in the Will

When creating a will, you should avoid having the guardian act as a witness to the will. This can help to ensure a smooth probate process and minimize potential conflicts of interest.

Having witnesses who are not involved in the distribution of assets or administration of the estate helps to uphold the integrity of the will. It provides an unbiased verification that the document was signed and witnessed in accordance with legal requirements.

Can the Guardian Also Be the Executor of the Will?

Yes, there is no restriction on a guardian also serving as the executor of the will. However, it is important to carefully consider the qualifications and capabilities of the individual before appointing them to both roles.

The role of the executor is to carry out the instructions and wishes outlined in the will. This includes managing the distribution of assets, paying debts and taxes, and executing other administrative tasks. It is essential to choose someone who is trustworthy, organized, and capable of handling the responsibilities of executing your estate and caring for your child.

If you have concerns about assigning both roles to one person, you may choose to appoint the same individual as the guardian and name a separate executor. This can help to ensure proper administration of the estate while still prioritizing the care and well-being of your child.

Coordinating with Your Partner to Name the Same Guardian

When you have children and a co-parent, it is important for both parents to name the same guardian in their wills. This helps to avoid potential custody battles in the event of a common accident where both parents pass away simultaneously.

In Ontario, the guardianship assignment is only valid if both wills chose the same guardian. The court would choose a guardian for your children in that situation. Other provinces have similar laws that affect conflicting guardianship assignments.

By naming the same guardian, you are ensuring that the best interests of the child are prioritized. It provides clarity and can help to prevent disputes among family members regarding who should be responsible for the care of the child.

Coordinating with your partner to name the same guardian also helps to ensure that your wishes align and that your child will be cared for according to your joint decisions.

Leaving Instructions for the Guardian

In addition to naming a guardian for your children, it is important to leave instructions for the guardian in your will. These instructions can provide guidance regarding your parenting philosophies, specific instructions for the care of your child, and any other relevant information.

You should not include these instructions in the will where the legal language has to be carefully worded. Most parents write a separate letter accompanying the will. This allows you to provide more detailed and personal information that may not be appropriate for inclusion in a legal document.

To ensure that your instructions are secure and readily accessible, it is recommended to keep the letter with your will and clearly indicate its existence and purpose.

Understanding Trusts for Minors and How to Set Them Up

Most wills establish testamentary trusts for children too young to receive their inheritance. This can mean the executor is responsible for keeping the minors' inheritance safe until they can receive it at their age of majority.

A trust is a legal arrangement where a trustee holds and manages assets on behalf of a beneficiary. In this case, the beneficiary would be your minor child, and the trustee would be responsible for managing their inheritance until they reach a specific age.

Some parents establish trusts before they pass away but that requires a financial planner and paying significant legal fees every year to maintain the legal structure of the trust.

Leaving Money for the Guardian's Care of Your Child

While you may want to leave money or assets specifically for the care of your child, it is not possible to leave money to one person for the benefit of another. Legally, you can only leave money directly to your child, not to someone else to manage on their behalf.

To address this, you can leave the inheritance to your child that is managed by the executor through a testamentary trust. This ensures that the funds are used for the care and benefit of your child, while also providing some level of oversight and management.

Collaboration between the guardian and the trustee is crucial in these situations. They should work together to ensure that the funds are used appropriately and in accordance with your wishes. Open communication and regular meetings can help ensure that the child's needs are met and that the money is being used effectively.

What Happens to a Child's Inheritance Without a Will?

If you do not have a will in place, your child will receive their inheritance at the age of majority (typically 18 or 19, depending on the province). This means that they will have full control over the funds, even if they are not fully equipped to manage them responsibly.

In the absence of a will, the court will appoint a trustee to oversee the child's inheritance until they reach the age of majority. This trustee is responsible for managing the funds and making decisions in the best interest of the child. However, there are limitations on accessing the funds for the child's care, and the process may not align with your wishes or intentions.

Writing a will ensures that you have control over how your child's inheritance is managed and distributed by appointing your own executor. It allows you to provide for their needs and protect their assets until they are ready to handle them responsibly.

Considerations for Adult Children and Inheritance

When writing a will, there is no legal obligation to include adult children as beneficiaries. However, it is important to consider the needs and circumstances of your adult children when making decisions about your estate.

In British Columbia, the Wills Variation Act allows adult children to challenge a will if they believe it does not adequately provide for their proper maintenance and support. This means that the court has the authority to redistribute assets to ensure that adult children receive a fair share of the estate. British Columbia is unique in this regard. Not many provinces have acts like the Wills Variation Act.

When updating your will, take the time to review the needs and circumstances of your adult children. This can help ensure that your estate plan reflects your current family dynamics and provides for the needs of all your children, regardless of their age.

Writing a Will with Young Children: Your Options

When it comes to writing a will, you have several options available to you:

Handwrite a holographic will: Handwriting a will is legal but you may forget to include things and the language in the will is likely to be challenged in court.
Estate lawyers: Consulting with a lawyer who specializes in estate planning can provide you with personalized guidance and ensure that your will meets all legal requirements. However, this option can cost up to $3000 and is time-consuming.
Online will writing services: Online will writing services, such as LegalDeeds, are customized to your unique situation and only cost $50. Online will platforms guide you through the process of creating a legally valid will, ensuring that you cover all necessary elements and address your specific needs.
Paper will kits: DIY kits are better than handwriting your own will but they do not cover all situations and are frequently out of date since they were last printed. Online will kits like LegalDeeds are much more advanced and regularly updated.

Online services like LegalDeeds provide step-by-step instructions and templates that you can customize to create your will. They also offer supplementary tools and resources to help you understand the process and make informed decisions.

When to Update Your Will

Writing a will is not a one-time task. It is important to regularly review and update your will to ensure that it accurately reflects your current circumstances and wishes. There are several trigger events that should prompt you to update your will:

Life changes: Any major life changes, such as marriage, divorce, or the birth of a child, should prompt you to update your will.
Children becoming adults: As your children grow up and become adults, you may need to reassess their needs and update your will accordingly.
Grandchildren: The birth of grandchildren may necessitate updates to your will if you want to give them an inheritance while their parents are still alive.
Change in circumstances: Any significant change in your financial situation or personal circumstances should prompt a review and potential update of your will.

By regularly reviewing and updating your will, you can ensure that it remains current and accurately reflects your wishes. Online will platforms are affordable so you can easily purchase a new will when you need it. Paying $50 for a will online is much more affordable and convenient than spending hundreds of dollars visiting an estate lawyer.

How to Update Your Will

When it comes time to update your will, there are a few important considerations to keep in mind:

Handwriting changes are not legal: Only the will at the time the witnesses signed is legally binding.
Consultation with a lawyer: If your circumstances are complex or you have concerns about the legal validity of your will, it may be beneficial to consult with a lawyer. They can provide personalized guidance and ensure that your updates are legally sound.
Codicils: Codicils are a legal document that updates a will without rewriting the entire document. Codicils should be written by a lawyer because drafting them needs to consider a lot of situations. In most cases, paying $50 for a new will online is more affordable than writing a codicil and makes your intentions clearer.
Online services for easy updates: Online will writing services, such as LegalDeeds, offer the advantage of easy updates. You can always order a new will customized for your updated situation. LegalDeeds also offers free changes in their 30-day satisfaction guarantee period.

By keeping your will up to date, you can help ensure that your wishes are properly documented and will be carried out in the event of your passing.

Why You Should Write a Will if You Have Children

Writing a will is a crucial step for any parent. It provides protection and care for your children, ensuring that their needs are met and their assets are distributed according to your wishes. Having a will in place also provides peace of mind for parents, knowing that their children will be taken care of in the event of their passing.

A will also helps avoid unnecessary legal battles and disputes among family members. By clearly stating your wishes, you can minimize the potential for confusion, conflict, and prolonged legal processes.

Take Action and Write Your Will Today

Writing a will when you have children is not something to be underestimated or put off until later. It is a critical step in ensuring the well-being and future of your children. With the convenience and affordability of online will writing services, such as LegalDeeds, there is no reason to delay.

Take action today and prioritize this important task. By creating a will, you can provide for the care and support of your children, ensure your wishes are followed, and gain the peace of mind that comes with knowing your loved ones are protected.

Write your will today for only $50.