If you have children under the age of majority, it’s a good idea to appoint a guardian in your will to supervise their upbringing in the event that both you and your spouse die. When selecting a guardian, consider a family member or friend with the ability and desire to care for your children. Do they have children of their own? Do their philosophies coincide with your own? Although the appointment of a guardian in a will is not legally binding upon the court, judges will often favourably consider the wishes of the deceased parents in determining the child’s legal guardian.
Children cannot inherit property until the age of majority. It must be held in trust for them until they reach the age of 18 (or 19 in some provinces). Therefore, a trustee for the property of your children should also be appointed in your will. This appointment is legally binding. The trustee may be a different person than the guardian.
Because probate and other problems can keep your estate tied up for some time, special thought should be given to the continuing needs of your dependants, between your death and the settlement of your estate. What sort of cash flow will they have, or require, to meet their basic needs such as mortgage payments, general living expenses, funeral expenses and so forth? You may want to hold assets jointly with a partner or spouse; the assets will pass directly to the survivor, avoiding the delay of probate.
If you do not wish your children to obtain control of their property at the age of 18 (or 19), you may stipulate that the property be held in trust for them until some later date and may give the trustee powers to use the property until that time to pay for the children’s expenses. The estate can distribute assets to children in a staggered manner; for example, one-third of the estate at age 25, one-half of the balance at age 28 and the balance at age 30. This approach is especially useful if your children are the only beneficiaries of a sizable estate.