Choosing a trustworthy sitter for date night can be hard. Leaving your children with friends or family for a childless holiday can be challenging, too. Imagining your untimely passing, leaving your children orphans, and deciding who is best suited and willing to raise your children can be nearly impossible. Sadly, in the event of your untimely death or incapacity without a Will, Enduring Power of Attorney, or Personal Directive, and decisions made with respect to your medical treatment, finances, or the care of
your children will be made by the courts without your guidance.
When preparing estate documents, many clients overestimate the amount of time required to gather and document their assets, while underestimating the challenge of selecting agents to act on their behalf upon their passing. As assets and liabilities continually change, the primary purpose of writing a Will is not to document your property. Rather, the primary purpose for writing your Will is for legal tasks, such as naming your Executor, beneficiaries for property, and appointing Guardians for your children.
To ensure your estate is managed and distributed in accordance with your wishes, it is vital to name both an Executor and Guardian of your children within your Will.
Naming an Executor
Your choice of an Executor, also known as a Personal Representative, is very important. Your Executor will manage your affairs upon your passing and will have significant discretion on decisions relating to the administration and distribution of your estate. You want to choose someone whose judgment and decision-making ability you trust and is most closely aligned to yours. Unless otherwise specified, your Executor will be the Trustee of any trusts established under your Will. You should consider the Executor’s ability to serve in that role in the context of the duration of the trusts, which can span many years.
Appointing a Guardian
One of the most crucial decisions you will make is the designation of a Guardian for your child(ren). A legal Guardian is an adult designated to care for a child in case both parents die before that child reaches adulthood. Many people struggle to pick a Guardian, and express that it is the biggest reason for delaying the completion of their Will.
Deciding who will raise your child in your absence is one of the toughest decisions you’ll face. You want to choose someone whose parenting style, values, and religious beliefs most closely match your own. You will also want to consider who is most able to take on the responsibility of caring for the child - emotionally, financially, physically, etc.
Choose an alternate Guardian to include in your Will; they will care for your child if your primary choice can’t or won’t serve.
Once you’ve chosen a Guardian, revisit your choice every few years to ensure they are still the best person for the role.
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