Drafting a will probably ranks up there with flossing — we know we should do it but we either put it off or avoid doing it completely. A survey conducted for the lawyers’ resource site LAWPRO found that 56% of Canadians don’t have a will.
If you have children, your lack of a will may be due to more than just procrastination. Parents tend to delay making wills because they struggle with picking the appropriate guardian for their kids, says independent financial planner and advisor Mark Halpern of Markham, Ont. If this sounds familiar, check out these important do’s and don’ts to help you with the decision.
Do: Ask the guardian first
Before you commit a name to a piece of paper, have a conversation with the potential guardian to ensure he or she would actually be willing to take on the role. Throwing a name into your will doesn’t automatically mean that person must take your kids. “The guardian always has a choice of saying ‘no,’ so why would you put down a guardian you haven’t made arrangements with?” says Halpern.
Do: Consider all angles
Ideally, you’d pick guardians who share your values and will raise your kids “close to how you are spiritually and religiously, and how you treat life,” Halpern says. So if you are a devout Catholic family, your atheist brother is likely not the ideal choice. Many people choose their own parents as guardians; it’s a worthy choice, but you need to consider their ages. “If 12 or 15 years have gone by since drafting the will, your parents may have become too old to fully fulfill the role,” says estate lawyer Barry Fish of Thornhill, Ont. “What you can do in your 50s is not the same as what you can do in your 70s.” Others will choose a sibling and his or her spouse, which could be perfectly fine — unless trouble ensues. Suppose they end up divorcing? “Your kids could be drawn in as pawns with a custody battle between them,” Fish says. To avoid that scenario, you may want to specify your sister as the guardian, but not your brother-in-law.
Don't: Forget contact information
Put all the guardians’ details in the will, including full legal names, street addresses, telephone numbers and email addresses. The executor may have difficulty finding them otherwise, says Fish.
Do: Include a back-up guardian
Since many people neglect to update their wills, it is possible that one of the guardians may have died or become unable or unwilling to assume the role. It’s also important to review your will regularly to ensure you still want the person you selected for the job. Consider what would happen if you lost touch with the person five years after drafting your will, Halpern says.
Don't: Make the executor and guardian the same person
The executor is in charge of fulfilling your will’s wishes and distributing any assets. The guardian is responsible for the well-being of your children. For example, if your brother assumes both roles, he could be tempted to dip into the estate’s assets since he’s also looking after your children. “It’s better to distinguish between the two roles so there are checks and balances,” Fish says. “The executor holds the purse strings and the guardian asks for the money.”
As a parent, you want to be sure that the best possible person is ready and willing to step in and finish raising your children for you, should the worst happen. With some careful planning, you can put that protection in place — and hope your children never need it.