Protecting Your Minor Children’s Future: The Consequences of Not Having a Will Under Canada Law

Wills & Estate Law
Reading Time: 8 minutes
Title Insurance and its Importance in Real Estate Transactions

As a parent, one of your primary responsibilities is to ensure the well-being and security of your minor children. One crucial aspect of this responsibility that is often overlooked is estate planning. Last will and testament allow you to distribute your assets according to your wishes and establish a trust to manage your children’s inheritance as well as designate a guardian for your children.

Not having a will can significantly impact your minor children in several ways. This article will discuss the consequences of not having a will under Canada law and the importance of creating a will to protect your minor children’s future.

Guardianship: The Critical Role of a Will

In Canada, a Will is the only legally binding way for parents to appoint a guardian for their minor children.  In the event that you pass intestate, without a will, the court will decide who will act as the guardian of your children. The court’s decision may not align with your preferences or your children’s best interests. By creating a will, you can ensure that your children are cared for by a trusted and capable guardian of your choice.

When choosing a guardian, consider factors such as the person’s values, lifestyle, and ability to provide a stable and loving environment for your children. For example, you may want to choose a close family member, like a sibling or a cousin, who shares your parenting philosophies and has a strong bond with your children. Alternatively, you might prefer a close friend who has demonstrated their ability to care for children and understands your family’s unique needs.

Without a will in place, the court may appoint a guardian who may not be familiar with your children or their needs. For example, the court might choose a distant relative who has little connection to your children or a close family member who does not share your values or parenting style. This can result in a challenging transition for your children and may affect their emotional well-being and sense of security.

The situation becomes more complex if your child is a temporary resident of Canada. In this case, the court may have to consider whether it is in the child’s best interest to remain in Canada or return to their country of origin. The court’s decision will depend on several factors, including the child’s connections to Canada, such as school attendance and friendships, and the availability of a suitable guardian in the child’s home country.

When drafting your Will, you can specify your wishes regarding your child’s residence and ensure that they are cared for by a guardian who understands their unique needs as a temporary resident. This can provide stability and continuity for your child, helping them maintain connections to their school, friends, and community.

Inheritance: Ensuring Your Child’s Financial Security

A will is essential in determining how your assets and property will be distributed after your death. Without a will, your estate will be distributed according to Succession Law Reform Act. These rules may not align with your wishes or provide the best financial outcome for your minor children.

Under the intestacy rules, if you die without a will and have a spouse and children, your spouse will receive a preferential share of your estate, usually the first $200,000. The remaining assets will be divided between your spouse and children, with your spouse receiving half and your children sharing the other half. If your children are minors, their inheritance will be held in trust by the Office of the Children’s Lawyer until they turn 18.

However, intestacy rules may not provide the best financial plan for your family. For example, if you have a blended family with children from a previous relationship, your current spouse may receive a significant portion of your estate, leaving less for your children from the previous relationship. Or, if you and your spouse die at the same time, intestacy rules may not distribute your assets in a way that benefits your children most.

A well-prepared will allows you to appoint a trusted individual or institution, known as a trustee, to manage your child’s inheritance until they reach a certain age or achieve specific milestones. This arrangement provides several benefits:

Customized Financial Plan: With a will, you can create a customized financial plan for your child’s inheritance that takes into account their needs, goals, and circumstances. For example, you can specify that the funds should be used for education, healthcare, or other essential expenses, ensuring that your child’s needs are met.

Gradual Distribution

A will allows you to set the terms for the distribution of your child’s inheritance, which can help them develop responsible financial habits. For example, you can provide for a gradual distribution of funds at different ages or milestones, such as completing college or getting married, rather than giving them the entire inheritance at once.

Investment Management

A well-chosen trustee can help manage your child’s inheritance by making prudent investment decisions, ensuring that the funds grow over time and are available when needed. This is particularly important if your child’s inheritance is substantial, as proper investment management can significantly impact their financial security.

Protection from Creditors and Predators

By establishing a trust in your will, you can help protect your child’s inheritance from potential creditors, legal claims, or individuals who may attempt to take advantage of their financial situation. A trust can also provide protection in case your child encounters financial difficulties, such as bankruptcy or divorce, ensuring that their inheritance remains secure.

Delay and Additional Costs: The Impact of Intestacy on Estate Administration

When an individual dies without a will, the administration of their estate can become a time-consuming and costly process. This delay can have significant consequences for the surviving family members, particularly when there are minor children involved. Here are some of the issues that may arise due to the lack of a will:

Court-Appointed Administrator

Without a will, the court must appoint an estate administrator, who may not be the person you would have chosen to manage your estate. The process of selecting an administrator can be lengthy, as potential candidates need to apply for a Certificate of Appointment of Estate Trustee without a Will, and the court must review and approve their application.

Surety Bond Requirement

When a person is appointed as an estate trustee without a will, they may be required to obtain a surety bond. This bond is a form of insurance that protects the estate’s beneficiaries and creditors in case the trustee mismanages the estate. Obtaining a surety bond can be expensive and time-consuming, and the cost is usually paid from the estate assets, reducing the inheritance for your minor children.

Family Disputes

The absence of a will can lead to family disputes over the distribution of assets, guardianship, and financial management of minor children’s inheritance. These conflicts can result in lengthy court proceedings and additional legal fees, which can further deplete the estate’s assets.

In case where the court appoints a guardian for your minor child and another family member wishes to dispute the appointment, this too can lead to additional time delay and legal fees.

Additional Legal and Administrative Costs

The administration of an estate without a will typically involves more legal and administrative work, as the court must oversee the process to ensure that the estate is distributed according to the law. This can result in higher legal fees and other expenses, which can reduce the amount of inheritance available for your minor children.

For example, consider a couple with two minor children who die unexpectedly without a will. In this situation, the court would have to appoint an administrator to manage their estate. This process could take several months, during which time the family’s financial needs may not be met. Additionally, the court-appointed administrator may charge fees for their services, further reducing the value of the estate. If the couple had created a will, they could have appointed a trusted family member or friend as the executor, potentially avoiding these delays and additional costs.

By having a will, you can help your family avoid unnecessary delays and additional costs associated with the administration of your estate. Working with an experienced estate planning lawyer can help you create a comprehensive estate plan that reflects your wishes and provides for the efficient management and distribution of your assets.

The Importance of Regularly Updating Your Will: Adapting to Life’s Changes

Having a will is a crucial step in securing your family’s future, but it’s essential to remember that your will should not be a one-time document. Regularly updating your will ensures that it remains up-to-date and accurately reflects your current circumstances, wishes, and the needs of your loved ones. Failing to update your will can lead to unintended consequences and complications for your family.

Here are some reasons why regularly updating your will is essential, along with examples to illustrate their importance:

Changes in Family Structure

Over time, your family structure may change due to marriages, divorces, births, deaths, or adoptions. These changes can significantly impact the distribution of your assets and the guardianship of your minor children. For example, if you initially named a sibling as a guardian for your child but later experienced a falling out, you might want to appoint someone else to ensure your child’s well-being.

Changes in Financial Situation

As your financial situation evolves, you may acquire or dispose of assets, such as real estate, investments, or businesses. Regularly updating your will ensures that all your current assets are appropriately distributed to your beneficiaries. For instance, if you purchased a vacation property after creating your initial will, you might want to include it in your updated will to prevent disputes among your beneficiaries.

Changes in Tax Laws

Tax laws can change over time, and an outdated will may not take advantage of the most current tax-saving strategies. Regularly reviewing and updating your will with the help of an estate planning lawyer can help you minimize your estate’s tax liability and maximize the assets available to your beneficiaries. For example, recent changes to tax laws may provide additional benefits to your spouse or children that were not available when you initially drafted your will.

Changes in Beneficiary Needs

The needs of your beneficiaries may change over time, requiring adjustments to your will. For example, a beneficiary may develop a disability and require additional financial support, or a previously dependent beneficiary may become financially independent and no longer need the same level of support. Regularly reviewing and updating your will ensures that your estate is distributed in a way that best meets the current needs of your beneficiaries.

Changes in Executor or Guardian

The individuals you initially appointed as your estate’s executor or your children’s guardian may no longer be suitable or willing to take on these roles. By updating your will, you can appoint new individuals to these critical positions, ensuring the smooth administration of your estate and the well-being of your minor children.

In summary, regularly updating your will is essential to ensure it remains current and accurately reflects your wishes and your family’s needs.

Not having a will can have significant consequences for your minor children. By creating a will, you can ensure their well-being and financial security according to your preferences. Consult with our experienced lawyers at MBLAW to create a will that protects your minor children’s future and gives you peace of mind.

Remember, estate planning is not just for the wealthy or the elderly; it is an essential step for every parent to ensure their children’s future is secure. Don’t delay; start the estate planning process today.

CanadaLawyer TorontoWills and Estate Law

The Content is current as of its original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose. Content is provided solely for informational purposes. It is not intended to be legal or other professional advice or an opinion of any kind. You are advised to seek specific legal advice by contacting members of MBLAW (or your own legal counsel) in relation to your specific legal issues.

Related Articles

What Happens When There Is No Will? Intestacy Explained
Probate Process in Ontario EAT and Other Considerations