Your Personal Finances

Family Issues

When my wife, Carolyn, and I prepared our wills, we contemplated who would be the guardians of our children if we were to die prematurely. Carolyn was adamant: "Tim, if something were to happen, I'd want someone loving, caring, responsible, and of a high moral character to look after our kids."

"But Carolyn," I replied, "if we knew someone like that, why wouldn't we just give the kids away today?"

We finally agreed on Carolyn's sister and her husband as guardians. "How do we ask them?" Carolyn wondered. "No problem," I said, "just say to them, 'Look, when we die, and you come to our funeral, bring the mini-van.' "

If you're the parent or guardian of minor children, here are some thoughts to keep in mind about naming guardians for your children.

Prepare your Will. One of the most important reasons to have a Will is to name guardians for your minor children. If you die without a Will, the court will have to decide who should look after your kids, and there may be different people arguing over this job, with the possibility that the kids will end up with those who aren't your first choice. Understand that there are no automatic rules. Some people believe that their children will be automatically looked after by their own parents if they were to die. Not so. There are no automatic rules.

Name an alternative guardian. Your Will should ideally name an alternative guardian in the event that your first choice for a guardian is unable, unwilling, or unfit to do the job.

The courts must approve. Simply naming a guardian in your Will is no guarantee that the named person will actually become the guardian. Others can apply for the job. The court will approve of a guardian after considering what's best for the child(ren). This doesn't mean that your wishes carry no weight. Naming a guardian can prevent family feuds and will certainly be considered by the courts.

Second marriages can pose issues. It's vitally important to make your wishes clear in your Will if you are in a second marriage or common-law relationship. There could be a dispute between your second spouse, or common-law partner, and your ex-spouse or other family members, particularly if guardianship comes with control over your money.

Consider separating control over the money. The person who you name as guardian of your kids does not have to be the same person who controls the money you leave behind for the kids. The guardian may be bad at managing money. Or, consider the potential conflict where you leave hundreds of thousands, or millions, to your children in trust, and your guardian has children of his or her own with much less money. The temptation may be to spend the money on the guardian's own children. Now, perhaps you're okay with this, but if not, consider naming a separate or joint trustee over the money.

Consider a gift to the guardians. Guardians don't get paid to raise your kids. So, consider making a gift to them in your Will that is conditional on the kids staying in their care.

Spouses can name different guardians. If you can't agree on a guardian (which is the best option), spouses can each name different guardians in their Wills. It's the Will of the last spouse to die that will dictate what happens to the kids. If you die together, the court will ask the kids, if they are age 12 or older, who'd they prefer to live with.