Parents always want to ensure their children are taken care of. But Ontario residents who die intestate (without a will) and who have minor children need to understand the ramifications of having put estate planning on the back burner. So many people are busy living their lives, so they don’t pause to think about what would happen if they died. This can be especially devastating if young children are involved.
Child custody was given a new moniker by Ontario. It is now called decision-making responsibility. If one parent should die, then most often the other parent will become the decision maker of minor children (under the age of 18). If there is no one else to take on that role, an estate plan can stipulate who should be the guardian of the children for up to 90 days after the testator’s death. If that individual wishes to continue to look after the children, he or she must go to court to formally ask for decision-making responsibility prior to 90 days after the death of the testator.
If there is no will
When an individual in Ontario who has minor children dies without a will that stipulates who should be the decision-maker for those children, more than one individual may be seeking that responsibility. A family court judge will come to a decision based on these factors:
- Age of the individual
- Whether or not the person is biologically related to the child
- Ability to care financially for the children
It is never too early to start estate planning. It is vital to understand the differences between decision-making responsibility, trustee and guardian of property when fashioning an estate plan with children in mind. An estate planning lawyer can help you understand these distinctions – and plan for the future.