I’ll never forget watching them fight over recipe cards. My grandmother had just died, and two family members were standing in her kitchen having a heated discussion over who would get her cherished handwritten recipes. My grandmother had left a meticulous will, but even she couldn’t have foreseen a battle over recipe cards.
“Some parents, with all good intentions, believe the handling of the will is going to be positive, but they don’t think clearly about what the will is really going to do to their children down the road,” says Linda Somers, a legacy coach and the operator
of will-help.com, which she started after the negative experiences — heartache, family squabbles, feelings of betrayal — stemming from
her own parents’ will.
1. Choose a guardian
Avoiding family fights over money and trinkets is one reason why we all need wills, but parents with young children also need to pick guardians. When making this very important decision, it’s important to consider your children’s feelings as well as your own. Ask yourself some of the following questions: Whose parenting style and values closely resembles your own? Who has the emotional, financial and physical means to care for your children? Do your children already have a relationship with anyone in particular? My husband and I agonized over whom to choose for months. We finally settled on his brother and his wife, but the whole thing left me feeling unsettled. I couldn’t imagine anyone else being good enough to take care of our children. Ed Olkovich, a Toronto lawyer and wills specialist, asks parents to contemplate > the alternative to not selecting a guardian. “When you stop and look at the consequences that may involve your relatives fighting at the funeral home over who will
take the children home,” he says. “You have to ask yourself, how do I avoid that? You name a guardian.”
2. Ensure guardians are comfortable with role
Our next step was to confirm that our relatives would accept this responsibility. So we sat down and asked my brother-in-law and his wife if they
would like to be our children’s guardians. They admitted they were flattered and readily agreed.
As for written instructions for the guardians on how your child should be raised, Olkovich says, “A lot of parents try to rule from the grave.” He believes if you are comfortable enough to pick two people as guardians, you should be confident that they will honour the morals and values you hold.
There are other things to keep in mind when choosing a guardian for your children, such as age. Grandparents are a popular choice. “It’s not a bad idea,” says Olkovich, “until they can’t take care of themselves anymore.” But it’s also possible to name more than one guardian for your children. If you’re keen on your kids being with their grandparents, you can define that this will be the case until the children reach a certain age, at which time guardianship will transfer to another relative or close family friend. Be mindful, however, of the potential emotional turmoil this could have on your children; being separated from their primary caregivers twice in a lifetime could be incredibly tumultuous. There’s also a minefield of family dynamics to navigate here. It can be so emotional that some people put it off all together. But Olkovich argues, “It’s your responsibility
financially, legally and morally to take care of those people
who are dependant on you.”
3. Name separate guardians for finances if possible
If your sister is great with children but not with finances, it’s also possible to name one person as guardian of your children, and another as guardian of finances. While this might work for close families, it could pose problems to the guardian of your children who may need to access funds readily and without the
complication of the involvement of another party.
If you’re separated or divorced from your children’s biological parent, things can be even more complicated. If there is no guardian outlined in a will, the courts will seek one who is in the child’s best interest. It’s not a given that custody will be assigned to the other biological parent if there is a step-parent in the picture who has raised them and who the children are very comfortable with. But, if there are concerns that a court could rule in favour of a guardian that you feel strongly is unfit, you can write a letter explaining your feelings and attach it to your will. While there are no guarantees when it comes to custody battles, the courts will consider all evidence in these cases.
There is no doubt that making a will and defining guardians is part of the responsibility of being a parent. And yes, there is a price tag attached to that responsibility. “The general rule is that you want to sit down and meet with a lawyer and review your assets. How many hours and meetings that may take depends on the assets you’ve got,” says Olkovich. “You’re generally looking at a minimum of $300 [to draft a will].”
4. Ask for professional help
As for do-it-yourself will kits, they seem like a cheap alternative but they’re not comprehensive. “Most people will look at the blank form and still not understand the important questions that have to be asked, issues like income tax, probate tax, family law and real estate law,” says Olkovich. “People don’t have the right information, and no kit will explain that.”
If both parents die without a will or an established guardian, in most jurisdictions the court will step in and appoint a guardian. Your assets will be liquidated and no trusts can be set up for your children. It’s complicated and expensive.
So when the time comes to make your will, be open about it. “Tell your children as much as possible about what’s in the will,” says Somers. “And if you can’t, write down the rationale for your decisions. It’s your final word to your children. It’s the last thing they will hear from you. How do you want to leave them?”
My grandmother’s money and jewelry were allocated in her will, but she asked all of us to tape our names on the pictures and
belongings we wanted in her house. It made all of us squirm at the time, but I see the wisdom in it now. It could have saved a bitter battle over a stack of old and well-loved recipe cards.
Karen Horsman is a broadcaster in Toronto.