Arranging Legal Custody in Your Will
When you give a guardian legal custody of minor children after you die, they assume all the same rights and responsibilities you had as a parent. For that matter, you can appoint as many guardians as you think would be helpful.
Your choice for a guardian can live anywhere, inside or outside Canada. While moving your children may upset their routine, it’s up to you to make choices you believe are in their best interests. Ontario family court and your next-of-kin may disagree, but guardians and minors old enough to speak for themselves also have a right to be heard by the court.
- Appointments Are Temporary
Your appointees are temporary and must apply to the court within 90 days to get permanent custody. They may be turned down if a court decides it is not in your children’s best interests or if your spouse or former spouse survives you.
Normally, a non-custodial parent assumes custody. If you both die, the court expects your Wills to specify who should take custody of your children. Dying without a Will leaves everyone in a state of limbo.
- Sole and Joint Custodians
Axess Law can draft your Will to specify your preferences for guardian, provided you have sole custody of your children. If you do not, you must consult with the other custodian and reach a consensus before finalizing your Will.
How It Works
Book Your Appointment
Click on ‘Get Started’ button to submit a request to meet with the Lawyer. Our customer care team will reach out to you within minutes to book your appointment.
Submit Your Documents
On the day of your appointment, our lawyer will verify your identification and walk you through the intake process where they confirm your contact information.
Draft Your Will With A Lawyer
Our lawyer will ask you a series of questions regarding your executor, beneficiaries, and make a note of your wishes before drafting a Will accordingly.
Execute Your Will With A Lawyer
Our lawyer will cross-check each page of the Will with you and if you are happy with the draft, the Will is signed and executed by the lawyer on the same day.
Documents We Need
Axess Law will ask you for two pieces of ID. Proving your identity is obligatory to prevent fraud. You may use either two pieces of primary ID or one primary and one secondary ID These include:
- Driver’s license
- Canadian passport
- Ontario photo card
- Canadian citizenship card with photo
- PR card with photo
Arranging Guardians of Property
Your children’s property is distinct from custody matters. Since you may not be the custodian of your children’s possessions, your choice for the guardian of the property must be affirmed by an Ontario court.
Property can include money from grandparents, investments, or another source of cash, such as bequests from you. Your appointee can invest your children’s money and decide how to spend it for our children’s benefit, For more on that, see Providing Financially for Your Children.
Steps for Appointing Children's Guardians
Divorced, separated, or single, wherever possible, discuss your wishes for your children’s custody and care with their other parent. Reaching consensus is best since if you don’t, a court can overturn your decisions and award custody to the surviving parent. Courts don’t make child custody decisions lightly. (See A Case of Temporary Custody for Ontario Grandparents if you’re unfamiliar with Ontario family law.)
Ensure those you propose to appoint legal custodian and guardian for property agree to assist your children. The court will overrule you if your appointees are reluctant or unwilling to be guardians.
Line up alternates in case, when the time comes, your choices fall ill, die, or are unable to be guardians.
Suggest your appointees get legal independent advice so they understand their roles and responsibilities as legal guardians or guardians of property.
A court appointment is required to get guardianship of your children’s property once you include it in your Will. Until then, even though you are their parent, you are not considered to have access to your own children’s property.
Your appointee must agree to be the guardian and apply to the court within 90 days to get permanent guardianship. Since courts generally prefer a surviving parent to be guardian, if it is important to show in your Will why you are nominating someone else.
Ensure appointees understand the urgency of applying for permanent legal custody and guardianship of property. Decisions in your Will are only temporary until an Ontario court approves the arrangement.
Courts heed their own judgment on who should be legal custodian and guardian of property. Be aware a judge may overturn your wishes in favor of a surviving spouse. Fortunately, courts are sensitive to children’s wishes and usually ask children what they would like to have happened. Remember to include pets in your Will — they can be precious to your children.
Your appointee may be required to sign a guardianship bond issued by the Ontario Public Guardian and Trustee. The bond will commit your guardian is carrying out their legally required obligations and protecting your children’s financial interests. The bond is meant to prevent neglect or theft by your children’s guardians after you pass.
Financially Provide for Your Children
Your Will can include bequests for minor children, but since they can’t inherit money directly, you must choose how to distribute your estate until they are 18. You can:
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Your Will can include bequests for minor children, but since they can’t inherit money directly, you must choose how to distribute your estate until they are 18.
Our lawyers prepare an individual or mirror Wills and refer you to trusted legal partners for advice on how to:
- Pay funds in trust to a surviving parent(s), for amounts under $10,000.
- Pay money into the court — an accountant for the Ontario Superior Court of Justice will manage and invest their money until they turn 18.
- Pay it in trust to a court-appointed guardian of property you have named or the court has selected.
Create a trust that holds your children’s money — the trustee, who can be your estate trustee or someone else, will distribute money to your children’s guardians as needed
Any option you choose has pros and cons.