It happens all too often. A person dies and the fight over the estate begins.
When there are children, this is particularly disturbing. Recently there was a story in the newspaper about a mom stating that her child was the love child of a recently deceased, extremely wealthy man. She was planning on getting a paternity test to prove her claim. To add to the situation, there were other children and no will. Now, this is not the usual predicament, but it did lead me to think about the importance of having a will, particularly when there are young children involved.
Making a will forces us to face our deepest fear, which is our own mortality. We know we should leave a will, but sometimes find it hard to actually get down to it.
When you are a parent you have an even greater challenge. In your will, you need to name a legal guardian for your children. You need to look tragedy right in the face and determine who will raise your kids if you and your spouse both die. It's difficult but important.
In my own situation, both of my parents died when I was a child. There were some struggles, but our father had named a guardian in his will, and the will prevailed.
When I was planning this column, I spoke to lawyer Maria Holman at Webster Hudson Coombe for her advice and tips.
The most important consideration is determining who can best take over the job of parenting your children if the need arises. This is not a short-term commitment; the guardian is taking over for the rest of their lives.
Often the first place we look is to our parents. While they may have been the world's greatest parents and are now wonderful grandparents, do they have the energy, the health and the ability to actually begin parenting all over again?
When you are considering whom to ask, consider whether the legal guardian will also be the executor of your estate. (This is exactly why I needed to talk to a lawyer; that probably wouldn't have occurred to me.) If you choose two people, one for each job, make sure they each know about the other, each have a copy of the will, and know how to contact your lawyer.
Once you've determined whom you'd like to ask, it's important to insist they take some time to consider your request. Bottom-line, anyone you care enough about to ask will automatically say yes. After all, they love you; they love your kids, and of course will step up to the plate if needed.
But insist that they take the time to consider. Ask them to visualize raising your children starting tomorrow. Ask them to realistically reflect for a few days on how their world would change if they were suddenly parenting your children for the rest of their lives. And be clear that if they say no, you will be fine with that. You'd rather they decline than say yes when they know they really couldn't take on the extra responsibility of your children.
Identify who will be the first people to deal with the kids. Who is physically closest? That may be a neighbour or your parents, but whoever it is should also know whom to contact.
If your children are old enough they can handle this. Let them know where you keep your will and whom they should call in case of a tragedy. Kids should know who their legal guardians are so that if there is a need, they know there is someone there who is ready and willing to care for them. The really frightening thing for children is not knowing who will look after them.
There are all sorts of other issues you need to discuss. Where will they live? Will the guardian need to buy a larger house to include your children, and if so, how will that be financed?
If you choose a guardian who is not a relative, make sure that you have told your family members. The last thing the guardian and your children need is a legal fight for custody on top of the tragedy which has caused this situation.
Holman reminded me that there are other considerations that often get forgotten. Take a look at family heirlooms including photographs, artwork, jewelry and the like, and leave specific instructions on how to handle them so they can be saved until the child is old enough to want them and be able to care for them.
Another consideration is that of adoption. Do you want the guardians to be able to adopt your children? Is it OK if they have their name changed to that of the guardians? Remember, if you don't put your wishes down on paper, you have no idea what the courts might decide for your children. Speak to a lawyer to make certain all the bases are covered. Ensure that you have done everything you can to protect your kids in case of your death. It's difficult but necessary.
There are no right answers here, just important questions that need to be addressed.
Kathy Lynn is a professional speaker and author of Vive la Différence, Who's In Charge Anyway? and But Nobody Told Me I'd Ever Have to Leave Home. If you want to read more, sign up for her informational newsletter at parentingtoday.ca.
