BL 002: How a Will Provides For Your Children and Guides Their Decisions

By September 15, 2014 A Beautiful Life No Comments
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A BEAUTIFUL LIFE LESSON 2:

How a Will Provides for Your Children and Guides Their Decisions

Most parents want their kids to grow up feeling confident and equipped to pursue their dreams and hopes.  Our job is to instil in them a sense of core values that have been shaped by our unique life experiences and formative influences.  What happens, though, when we’re not around to instil these values in them ourselves?  And how will we provide for them if we’re not here to do so?

In this 14-minute lesson you’ll discover:

The powerful tool that determines how your child will be provided for
How to keep control of your assets away from the government
Five things that would happen to your assets if die without a will
And much more!

Listen to or read Lesson No. 2 below…

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Lesson Transcript (below)

Introduction

It’s always been part of our human imagination to project some level of our wishes and aspirations onto the next generation.  Some of us hope our child will become the next sports star. Or the one who finds a cure for cancer. Or something else noble and valorous. Such fanciful hopes aside, most parents just want their kids to grow up feeling confident and equipped to pursue their dreams and hopes.  What our job is, is to instil in them a sense of core values that have been shaped by our unique life experiences and formative influences.  What happens, though, when we’re not around to instil these values in them ourselves?  And how will we provide for them if we’re not here to do so?

Welcome to the second episode of “A Beautiful Life: Building a Lasting Legacy for Your Family”.  This is Simon Park, and in this second episode of the trilogy on wills, I’m here to take you on a deeper exploration of Wills and Estate Planning for Young Families.  This show is brought to you by the law firm of Park & Jung – Your Toronto Law. I’ll admit I’m biased, since this is what I do, but I find this area of law fascinating because of the real life dynamics at play.  Today we examine how a will enables you to provide for your children when an unforeseen death occurs. We also learn about a powerful tool to not only provide for your children, but to pass on your values and guide the decisions of your child. Finally, we learn what could happen if you don’t have such a plan in place.  Stay tuned…

Part 1: The Saga Continues

In the previous episode, we talked about the issue of custody, and the process for determining who would have custody of your children if both you and your spouse were to pass away.  I think you’d agree with me that for that reason alone, having a solid will in place is totally worth it.  Isn’t it?  But the story doesn’t end there.  How will your kids be provided for?  Who will make those decisions?  Do you have any say in that?

A common question many parents ask is: my assets aren’t complex.  All I have are my house and RRSP’s.  Won’t it all just go to my spouse, or to my kids if we’re both gone?  Those are great questions. Here are some quick answers:

If you have a surviving spouse, and all your assets are held jointly, then the ownership of the assets will flow automatically to your spouse as the sole owner of them. It gets a bit more tricky when you have assets that only you own. If you die without a will, then someone first has to be appointed as an administrator for your assets. This will likely be your surviving spouse, but it could be a cumbersome, time-consuming process that costs money to have you approved. Once your spouse is approved, then the first $200,000 of your assets go to your spouse. The remainder, if there is any, gets divided between your children, only that if your children are under 18, they’re not allowed to control their share. That leads to another process of your spouse applying to the courts to gain access to their share. This situation can often occur when the deceased spouse had the house under his or her sole name.

What if both parents die? Don’t the assets just go to the kids? Yes, except who will administer them and ensure your children have enough support while growing up? I will talk about this tangly situation later in this episode.

Part 2: Who Holds the Purse Strings?

There are two separate issues when it comes to the care of minor children: the first is the issue of custody – or who will have the physical care of the child.  That’s the issue we covered in the first episode.  The second is called “guardianship”. While it’s related to the first, it is separate.  Guardianship refers to who has control of the money and property of the child.  The one with custody and the guardian can be the same person, but it isn’t necessarily so.  For example, grandma may have custody of the child, but Uncle Joe may be the guardian for the property.  When might this type of situation arise?

Well, grandma may be the more nurturing figure in the family.  But grandma has always been a simple person and left money matters to others like grandpa.  Uncle Joe has always been savvy with money, so you trust that he will make the best decisions when it comes to investing it and deciding when and how much of it to use for little Emily. The tragedy of your departure aside, this looks like the best possible arrangement, doesn’t it?  You’re seeing the power of a will in action.  Let’s explore this a little bit…

Part 3: Behold the Power of Will, and its Sidekick, “Trust”

It seems like every hero has a sidekick, companion or assistant to help him or her save the day.  Batman had Robin.  Luke Skywalker had Hans Solo.  These are good metaphors when thinking about estate planning.  Let me explain.

The will is the foundational piece.  When it comes to your kids, the will names your appointed custodian to take immediate custody and care for your kids upon your death, assuming there is no other parent around.  But a close companion to the issue of who gets the physical care of your child is how that child will be provided for.

What Robin is to Batman, a Trust is to a Will.  As I mentioned, the Will designates the custodian, or main caregiver, of the child.  A Trust designates someone called a Trustee, to take legal ownership of assets that are to be used for the benefit of the child.  The trust document contains terms specifically crafted by you that outlines what the trustee can and cannot do with that money.  In other words, you can dictate to the trustee how that money should be used, how it should not be used, when it can and when it cannot be used. You are in the driver’s seat, even after your death, and your trustee has to comply with your instructions. Now there are limits to what you can dictate in the trust document, but that’s for your lawyer to tell you, depending on what your specific wishes are.

Part 4: Who Says Number 2 Takes a Back Seat?

Just like Luke Skywalker needed Hans Solo to perform his heroic feats, the Trust becomes an indispensable part of the Will.  Remember how I talked about instilling our core values into our kids?  Well, believe it or not, if you’re no longer around, the Trust can play an instrumental role in continuing to shape the direction your kids take according to what you value.

For example, is education important to you?  Then you want to include a provision in the Trust that enough money be saved by the Trustee to provide for your child’s education.  If you value education, then you’ll agree with me that this is important to do, because we all know how steep tuition is now, and will be all the more so in the future.

Do you trust your designated trustee, and believe that he or she knows your deepest desires and wishes for your child?  Then you might want to give Uncle Joe discretion in how he utilizes the money in his care.  Circumstances may change – for example, little Emily gets into an accident and requires specialized care – that require specific uses of the funds.

Or you might want to make sure that little Edward doesn’t get his entire share of his money right when he turns 18, but rather that the distributions are spread out over time, or after he’s accomplished certain things, like getting a job after graduation.

A trust is customizable to reflect one’s different priorities and values.  The best thing about this is that the control and discretion remain in your hands, and you shape the destiny of your child’s inheritance.  What’s more, you keep the master villain away from your child’s money, otherwise known as the … government…  Okay, I’m in no way trying to say that the government is evil – but I’m just trying to illustrate my next point on what can happen if you don’t have a will and trust in place…

Part 5: The Five Things That Happen To Your Assets if You Have No Will

You’ve now seen the power of a Will and Trust work side by side to reflect your wishes and priorities.  What happens when you don’t have a Will and Trust in place?

As I eluded to in the previous section, in comes that force that strikes fear into many a person… the government.  Now don’t get me wrong – there is a place for the government in our society and in our lives, but this is not one of them.

Why does the government get involved if there is no trustee? It’s because minors cannot legally control property, even property that’s in their name. So if there’s no trustee or court-appointed guardian, the government will hold and administer the property of the minor child until he or she turns 18, at which time the entire amount will be given to him or her.

Put even more simply, here is what happens if you have no will, and you and your spouse die.  Your children are the beneficiaries of your estate – meaning they are the ones to inherit your house, your RRSP’s, and any other savings or pension entitlements you are to receive.  Sounds simple and good, right? Wrong.

Here is what would happen:

  1. The court would have to appoint someone to administer your estate, whether that be someone you know, or the government
  2. This person (or the government) would then have to deposit the moneys into court
  3. The court would determine how, if at all, this money is to be used until a time where it approves of a legal guardian
  4. Related to the previous point, someone could apply to become the legal guardian of the money and property, and thus have the money provided to him or her to provide for the child
  5. The government would have the opportunity to oppose any such application, and/or require the applicant to prove why their appointment would be in the best interests of the child

Does this sound like a headache?  It is.  While all of this going on – and again, if you’ve been through a court process, you know that things do not move quickly – your child’s rightful property is locked up in the hands of the court.

We asked a question earlier on, and that was: “what if I don’t have much in the way of assets?  What if the only assets I have are my home and RRSP’s?  Do I still need a will?”  Well, aside from the whole issue of custody of your child, what you do have is still a significant amount that could be utilized well according to your wishes.  Whether it be using that for your child’s tuition, or enrolling them in music lessons, that money could have been used according to your wishes.

It seems like the situation is out of control, and you are probably looking on from above shaking your head at how things are panning out.  I hate to break it to you, but there’s another thing that might cause some discomfort to your soul…

Part 6: How a Trust Plan Guides Your Child’s Decisions

Let’s flash ahead 10, 15 years later.  The memory of you has receded, and your little children are not so little anymore.  They just had their 18th birthday and are now adults!  They can vote!  But wait a sec, there’s a lot more they can do than just vote now.  It’s their big payday!

You didn’t make a will or trust plan, and you are now but a distant memory to your kid.  Now he’s 18.  Without a will or trust plan, the money that was either held by the government, or under the control of the court-appointed guardian, is now his alone.  Now we have no idea how he or she may have turned out, but whatever the case may be, would this have been your wish?

Does Emily have any idea of what your wishes would have been?  Does it even matter?  She is now free to do as she pleases with that money.  If you are lucky, she will put it to good use, like going to college or university, or starting a viable business.  But we were all 18 once, and I think you’d agree with me that we still had a long way to go in our maturity.

Having your trust plan in place ensures that the money you leave behind will be used in a way that you intend, or at the very least you will entrust it with someone who you know will use it wisely for your kids. In the next episode, we will see how a trust plan can come alive beyond mere words on a piece of paper. But for now, know that we can avoid the grim picture of a child’s eyes bulging at the age of 18 because he just hit payday. Will that money still be around in 5 years?

Conclusion

Thank you for listening to this episode of “A Beautiful Life”. In the third and final episode of this trilogy on wills, I talk about what happens to the child when a parent dies, factors that affect the child’s recovery, and how a proper will assists a child through this recovery, and more importantly, enables you to actually be a light of hope and inspiration for your child. This is why that episode is titled “How to Leave a Lasting Legacy Beyond Your Physical Assets”.  Please head on over to our website, at www.parkandjung.com, and provide your comments and feedback for this issue.  Our goal is to make the legal process as understandable and seamless as possible for families, and your feedback will help us in this mission.  We look forward to seeing you in the final installment of this trilogy, and until then, we sincerely hope you make this day a part of “A Beautiful Life”.

“A Beautiful Life” is a production of Park & Jung LLP.  Park & Jung endeavours to provide legal education.  The content on this podcast is strictly for general informational purposes related to the law in Ontario, Canada and is not to be used as legal advice.  For matters relating to your individual situation, please seek independent legal advice from a licenced lawyer in your jurisdiction.

This is Part 2 of our 3-Part Series on Wills for Parents:

Please proceed to Part 3: How to Leave a Lasting Legacy

Want to learn about how to build a lasting legacy for your family?

Go to our Lesson Page on

“How to Prepare a Will”

 

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About Simon Park

I am a Toronto-based lawyer and a Partner at Park & Jung. You can connect with me on LinkedIn.