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Minor Children & Wills

If you have children under 18 you will want to consider how they will be supported and who you would want to take care of your children.

Beneficiaries under 18

If you have children under the age of 18 at the time of your death your Executor will generally manage anything left to them under your Will. You can also name someone other than the Executor to do this. This responsibility will continue until the child reaches the age of 18, or older if you have specified an older age in your Will.

Planning for estates that will include minors as beneficiaries is complicated. Ensuring that a trust established for the benefit of your children is properly drafted is critical. A lawyer can help you understand the many considerations there are and ensure that your intentions are carried out.

You can give your Executor, or person you name, the authority to use the child’s share of the estate to support the child. You can put limits on the type of expenses that can be paid from the child’s share of the estate or just give general authority to use it to support the child. A lawyer can help ensure that this type of trust is properly drafted and workable.

If you do not name a property guardian and one is needed, the Court can appoint a guardian. If no one is available, the Court will appoint the Public Guardian and Trustee to be the property guardian. The Public Guardian and Trustee also monitors the actions of Executors and trustees who are managing a child's property.

It is important to understand that such an appointment can be challenged on the basis of the best interests of the child.

If you have children under the age of 18 you will want to think about who you would like to care for them in the event of your death, where there is either no surviving parent or there is an agreement or court order authorizing you to appoint a legal custodian. Such an appointment can be made under your Will. Individuals appointed as a legal custodian may wish to have the appointment confirmed by the courts and receive a declaratory order formally recognizing the appointment.

A Court can revisit this matter at any time. Concerned relatives or friends may also ask a Court for a new order. If a legal custodian is unable or unwilling to act, the Court can appoint another person to be the legal custodian. A court can also make other orders to address concerns over who will care for the children. However, appointing a legal custodian for your minor children will ensure that your wishes are known.

In choosing a legal custodian, you may want to consider the attitudes of the proposed custodians towards important matters, such as education and religious beliefs. You may want to consider their financial ability to raise your children, keeping in mind what you are able to provide for under your Will. It is important to discuss your wishes with the legal custodian you are considering. You can change this, or any, part of your Will if circumstances change or you simply change your mind.

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