Wills Involving Minor Children

Disclaimer: The following information is intended as general information and not to be read as legal advice. Please seek legal advice from qualified legal professionals.

Sometimes testators may have special considerations for their minor children. Specifically, we will be examining some options available to the testator, ensuring that their assets are passed down to their children and well taken care of when the surviving spouse remarries.

To ensure your estate passes to your children when your surviving spouse remarries after your death, you may consider the following:

A. Insurance

The testator may obtain an insurance policy for satisfying coverage and name the children as beneficiaries.

B. Split the Estate

Rather than giving all your estate to the surviving spouse first, you may split your estate between your spouse and children. Plus, appoint a trustworthy and reliable trustee to administer your minor children's interest in the estate.

C. Implement a Spousal Trust in the Will

You may prepare a "spousal trust" with particular instructions and conditions on the distribution of your estate, such as stopping payment when your surviving spouse remarries.

Options A and B are most the common and least expensive and generally considered in our standard Will. However, you will have to contact an insurance broker for option B, while option C requires customization. Lastly, option D is the most expensive and requires custom legal drafting and accountant or tax lawyer consultation on the tax treatment of trust. Additionally, there are usually annual fees to maintain the trust and calculate taxes.

Family Law Considerations:

However, what if I do not wish to leave any portion of my estate to my spouse? And What if I want to pass my entire estate to my children directly, providing nothing to my spouse or future children?

When contemplating such questions, it is important to note that any jointly owned assets, such as real property, joint bank accounts, etc., will pass by way of survivorship to the surviving spouse. Suppose you do not wish for the jointly owned properties/real properties to pass to any joint owners (including your spouse). In that case, you have to make changes to the title (such as title transfer for real estate property and make changes to your joint bank accounts so that it is solely owned). Essentially, jointly owned properties/real properties do not pass under the Will but pass by way of survivorship contrary to what the Will expresses.

Additionally, suppose the surviving spouse does not receive anything from the Will. In that case, the surviving spouse can make a family law act election within six months from the date of death to claim an equalization of net family property (for e.g. if the deceased spouse's estate was valued at $1,750,000 and the surviving spouse's assets were valued at $1,000,000 at the date of death. The difference in valuation is $750,000. The decease had liabilities worth $150,000. The surviving spouse may make a family law election for 50% of ($750,000 minus $150,000) or $300,000) under section 6 of the Family Law Act.

The takeaway is that under Ontario family law, the family law election is available and should be kept in mind when drafting your Will. Essentially, the focus is on what the deceased is distributing in the Will. However, the law wants to ensure that the surviving spouse should also be kept in mind. Again, we cannot comment on the success of these potential challenges but wish to bring it to your attention that these challenges are available and should be kept in mind when drafting your Will. Hence, it is recommended that both you and your spouse speak independently with a family lawyer to prepare a marriage contract and expressly agree that both spouses will not make any family law claims.

Another structure that we sometimes observe is in situations that involve couples with blended families. Blended families involve spouses in a second marriage and have children from their first marriage that are not common between spouses of current marriage, i.e., children that are not blood-related to both spouses. In those situations, the individual tends to be more concerned that their blood will not inherit when the testator passes away. We typically see in those cases that the Will maker will provide for a life interest in the matrimonial home (assuming that this is the biggest asset of the Will maker) to the surviving spouse with all the estate left to their blood children. Doing so provides the surviving spouse with a place to live during their life, and when the surviving spouse passes away, their portion of the home that belonged to the testator shall go to the blood children.

Note: Please refer to our short article on this topic from the link below (please refer to point "D" in the article):

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Trustee Considerations:

Should I appoint someone other than my surviving spouse as the trustee of my minor children?

Generally, what we observe from the industry is that the testator appoints the surviving spouse as the trustee to manage the financial affairs for their minor children (under 18 years old) even if the surviving spouse later remarries. The other option available is that a testator may appoint a neutral third party to act as the trustee when your children are still minors and your surviving spouse remarries. Essentially, the newly appointed trustee comes into effect when the surviving spouse remarries and will only have the power to manage the children's estate interest and not matters relating to your children's parenting (custody or guardianship).

Hence, initially, it will be the surviving spouse who is appointed as the trustee. However, when the surviving spouse remarries, and the children are still minors, you would insert a condition that the surviving spouse acting as trustee will be terminated. Additionally, the neutral third party will be appointed as the new trustee for the minor children's estate interest. Your wish would be that when the surviving spouse remarries, the newly appointed trustee has only the right to manage the estate interests of the child and not the right to raise the child (custody or guardianship).

Please note you may also wish to consider the situation involving surviving spouse cohabiting rather than marrying another person.

The law firm Landmark Law Professional Corporation may assist your estate planning matters. To get started with your Will, please click here:

Client Kit: Standard Wills and POA
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Disclaimer: This article does not contain legal advice and only provides general information. It is not intended to replace advice from a qualified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter referenced in this article before making decisions. The use of this article does not establish a lawyer-client relationship.