BL 001: Three Ways a Will Protects Your Kids

By September 14, 2014 A Beautiful Life No Comments
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A BEAUTIFUL LIFE LESSON 1:

Three Ways a Will Protects Your Kids

Why do I need a will?  I’m young.  I’m busy.  I don’t plan on leaving this world anytime soon, and to be honest, I just have so many more pressing priorities on my plate.  Do I really need a will?

In this 13-minute lesson you’ll discover:

The most important reason why all parents should have a will
The six steps to ensuring the right people take care of your children
The potential nightmare if you have no will
Potential conflict among relatives if you don’t plan properly

Listen to or read Lesson No. 1 below…

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Lesson Transcript (below)

Prologue

Love. Marriage. Children. These are some of the happiest moments of our lives. It’s a blessed existence to infuse this happiness into the busy-ness of our lives. Because busy they are. You work hard so that you can make enough for the mortgage and provide for your kids. These are important things that occupy us in the whirlwind days that fly by us.
Welcome to our audio lesson series, “A Beautiful Life”, brought to you by the law firm of Park & Jung – Your Toronto Law Firm. We cover important topics like preparing wills, financial planning, and other practical advice that will help you on your journey as parents. Our hope is to help you live a truly beautiful life and build a lasting legacy for your family. I’m Simon Park, and in the first three episodes of this series, I’m here to teach you what all parents should know about wills and estate planning. I’ve put a lot of thought into how I can take a topic that seems cut and dry like Wills and Estates, and demonstrate the sense of wonder and fullness that I know it to be. Through this trilogy on wills, I hope to show you that wills and estates is a way to plan your life intentionally and with great meaning. Thank you for joining me on this journey. Stay tuned…

Introduction

Why do I need a will? I’m young. I’m busy. I don’t plan on leaving this world anytime soon, and to be honest, I just have so many more pressing priorities on my plate. Do I really need a will?
If you can relate to those questions, then you are like many other young families. The thought of death and mortality is just not really on our minds, nor is it something you want to think about. And that’s understandable.

So why do I need to think about a will? I mean, come on, really, what are the chances of me dying anyway? Truth be told, the chances are probably quite low, and you will probably be one of the many to live gracefully into old age. But is the early death of a parent unheard of? Isn’t it in the realm of the possible? Isn’t anything in life? This is why we have insurance for situations that are not likely but still possible, and for which we would suffer greatly if it did happen. The chances of getting into a car accident are not that great, but insurance gives us more peace of mind if we do. There is probably less of a chance of your home flooding, but we get home insurance to cover such situations. The same goes with life insurance. Many parents have life insurance, to provide enough money for their family if they suddenly die. If the statistics are true, more parents have life insurance than they do a will. Why is this the case? I believe that it’s because most parents don’t fully realize the implications of not having a will if they suddenly pass away.

Some recent studies say that up to 60% of Canadians die without a will. I bet an even higher percentage of parents with young kids don’t have one. And so my mission is to educate parents about the importance of having one. Let’s dive in with the most important reason you should.

Part 1: The Most Important Reason All Parents Should Have a Will

If someone were to ask you, “what’s the most important thing in your life right now?”, I bet a good number of you would say, “my kids”. If it’s not number 1, I’m sure it’s way up there on your list. All parents made a vow – whether conscious or unconscious – when they first held that tiny little infant to do everything in their power to protect and provide for that living being who’s so utterly dependent. Suffice to say, this is the most important thing in the lives of most parents, and it’s the number one reason, in my opinion, why all parents should turn their minds to preparing a will.
Doesn’t your responsibility lie with you not only while you are alive, but even moreso if you’re no longer around, especially if they are still young?

If your answer is “yes”, how would a will do this? Let’s explore.

Part 2: Deciding who Cares For the Children

Here’s the issue: if you’re no longer around to care for your children, you want to make darn sure that they’re in the care of someone YOU choose. YOU know your children the best in this world, and YOU know what’s best for them. More than grandma, more than aunties and uncles, YOU as the parent are the ultimate protector for your child.
If you are married or have joint custody with the other parent, then that person will presumably take over the care of the children. If you are gone, then hopefully that’s all you’ll need. At this stage, a will does not play a significant role with respect to care for children.

The problem arises if or when both parents are deceased. If you’re both gone, who’s gonna take care of the kids?

Part 3: The Temporary Custodian Swoops Down From Heaven

Okay, maybe not heaven literally, but surely like a guardian angel, your chosen person comes to the rescue of your distraught kids.
In every will, a parent is able to name a temporary custodian, or custodians, who have an automatic right to the custody and care of your children. This custodianship takes effect for 90 days after your death.

During those 90 days, an application must be made to the family courts, who will decide who ultimately gets long-term care and custody of the children. The courts look to the best interests of the children, and who could provide the best care for them.

Part 4: The Six Steps to Ensuring the Right People Take Care of Your Children

Since you have presumably taken the proper steps, you have put all the elements in place to seal the deal for your choice of custodian to become permanent.

 

Here are the steps that you will have taken:

1. Communicated your wishes to this person or people
2. Received their consent to take custody and care for the kids
3. Had a discussion with them about how you want your children raised
4. Written up a plan that outlines details of how they would be raised
5. Written a private and confidential letter that explains your reasons on why you do NOT wish certain people to have custody and care for your kids
6. Ensure that this person or persons have developed loving and lasting bonds with your kids

The courts will ultimately make their decision on what is in the best interests of the children, but if you have taken these steps, and can furnish clear evidence of them, the courts will likely be convinced that your wishes are indeed in the best interests of the child.

Part 5: A Potential Nightmare If There Is No Will

I would not be doing my job if I didn’t talk about what would happen to your kids if you and your spouse died without a will. There are a number of consequences if you die without a will. I touch on some of these in later episodes. In this episode, I focus on the issue of custody of your children.
Without a will, there is no automatic temporary custodian. It is up to the courts now to determine who can best take care of the child, both short and long term. While this process is taking place, who do you think has custody and control of the child? The child welfare authorities do.

How tragic and potentially traumatic this experience would be, especially if there are loved ones fully capable of providing some needed loving care. Think about it, if both you and your spouse are suddenly gone – or your spouse had already departed and now you are gone – think of how distraught and disoriented your child would already be. Combine that with now being under the purview of complete strangers. That’s not something we would wish upon any child.

And just to give you a glimpse into the process of going through the courts, any person wanting custody of the child would have to furnish the following:

1. An application with an affidavit that outlines that person’s proposed plan for the child’s care and upbringing; and information about any family or criminal proceedings they were a part of.
2. A police records check
3. A CAS – or Children’s Aid Society – records search

Do you think this happens right away? If you’ve had any experience with government bureaucracies, you know that nothing happens right away. And if you have had some involvement with family, criminal or CAS proceedings – you better be prepared for more delay, and more importantly, greater scrutiny and questioning of your application. Let’s just say that having something on any of the records will cast your application in great doubt. A properly prepared will, plus effective implementation of the additional six steps we outline above can significantly reduce the risk of such pitfalls. At Park & Jung, I make absolutely sure to incorporate such steps into what we call the “Child Protection Plan”, as these often overlooked steps are that important.

Part 6: Potential Conflict and Acrimony Among Relatives

If you’re like most families, you know that dynamics with the in-laws can often be a touchy subject. We’ve often heard that when you marry someone, you don’t just marry that person, you get their whole family as part of the package. Every family comes with their own personalities and norms, and being married is a juggling act between those very different dynamics. Some families get along great and are in sync, but we know there are others who don’t.
Now let’s get back to our scenario. Both you and your spouse are gone. There has been no planning for your absence. There has been no discussion of who would take care of the kids. Will it be a peaceful and harmonious process to decide who should step forward to seek custody?

If there is agreement and immediate consensus among all the relatives and close friends about who should step forward to seek custody, then at least the process can swiftly move ahead as outlined in the previous section. But different ideas about what’s best for the child – and more importantly, WHO’s best for the child – may bubble to the surface and explode. Think about your own family dynamics – is such a difference of opinion possible?

If no agreement is found, then the conflicting parties must present their case in court. This involves lawyers, money, emotional acrimony, and time. Most importantly, the very subject of the matter – your precious child – is left in limbo while the “adults” duke it out.

Surely this is not a scenario you wish for your child. And it’s possibly the worst outcome you can imagine, even moreso than some of the scenarios I will outline for you in subsequent episodes.

I’m sure you will agree with me that the well-being of your child is more important than the visible things like money.

Part 7: Coming Full Circle

So if I’ve done my job well, then you should agree with me that preparing a will is absolutely necessary to ensure your kids are protected even if you are not around. Let’s summarize some of the key things that can offer you greater peace of mind:
• YOU get to choose who takes care of your children once you’re gone
• YOU make it easy for the courts to decide who is to have custody of your kids
• YOU prevent conflict and discord and potentially messy court battles

Ultimately, YOU are in control, even if you’re physically gone. How does that sound for a nice send-off?

This is Part 1 of our 3-Part Series on Wills for Parents:

Please proceed to Part 2: How a Will Provides for Your Children and Guides Their Decisions

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

Go to our Lesson Page on

“How to Prepare a Will”

 

Learn More

About Simon Park

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