Fundamentally, all wills should start with the question of who takes care of your estate and minor children before moving on to what the estate is giving to whom. Who acts as  executor(s) (referred to as estate trustee or liquidator in some jurisdictions) and guardian(s) for children (both custody and property) can be critical decisions which need to be made for the well-being of your family after your death.

Typically, most wills set out that the residue of the estate (the portion remaining after your estate has paid all funeral expenses, taxes and debt) is transferred to the surviving spouse who also, in most cases, continues to be maintain custody and are guardians of property for minor children.  But what happens when both parents/spouses pass away?

The following is some information to consider when making these decisions. As usual, please consult a qualified lawyer for advice specific to you.

Choosing an Executor

The estate (which is what your possessions and debts are called after your death) must be administered by someone in this scenario. To be clear, the executor does not have to physically carry out all the steps necessary to carry out the wishes of your will. A well-drafted will grants to the executor the ability to retain professionals to assist the executor in doing so.

For most uncomplicated estates, some options for the executor’s role would include siblings who live close to the deceased, a close family friend or the family’s lawyer or a combination of these people (most jurisdictions allow you to have multiple executors). Generally, siblings or friends who live in far-off places, elderly parents and distant relatives tend not to be good options. The other factor to consider is if siblings and non-elderly parents become guardians of young children, would you what to burden them with additional responsibilities? The compromise in this case may be to appoint multiple executors and/or separate guardians for the children.

For the complicated estates (self-employed individuals with businesses to tend to, estates with property in multiple jurisdictions, large estates, many beneficiaries), the question becomes not just appointing a sibling, close friend or family lawyer but whether these individuals have the time, knowledge and skill-set to administer a complicated estate (remember that both spouses are deceased so there is little family memory to rely upon).

For many executors of owner-managers, they may end up having to make key decisions for the business for a period of time before the business is handed off to children who come of age or sold to third parties. Thus, it is doubly important to ensure the executor lives close the deceased and the business and understands how to operate a business.

As a result, many people with complicated estates end up choosing a sibling or friend with professional qualifications, even if they are closer to another sibling or friend or a lawyer (and care must be given on whether the lawyer herself is of an age that they may predecease you or retire before your death) or a trust company (a very costly last resort).

Choosing a Guardian

As a crash course on children’s law in Ontario, the appointment of a guardian for a child’s property and the person obtaining custody have 90 days after death to act in such capacities and must apply to the Courts to continue both custody and guardian of a child’s property after this period.  The Courts typically defer to the wishes of the will unless the guardian is unsuitable for the position. Please note that if you have joint custody of a child, awarding custody or guardianship of a child’s property is invalid for the obvious reason the other person having custody of the child has a say.

The question of guardianship is much more emotionally vested than that of an executor since it becomes a question of who can meet the emotional needs of a child as well as managing money properly (either money given to the minor child in trust or to the guardian) given both parents are deceased.

Nonetheless, the same practical considerations exist: is the guardian close by (unless you do not object to moving your children), are the guardians of the same relative age or younger than the deceased when the will was drafted (a 72 year grandparent obtaining custody of a 10 year old child is most likely unfair to both parties), are the guardians suitable parents?

It is possible to appoint joint guardians. Thus, your brother and sister-in-law could be wonderful parents but terrible at money. In which case, it may be prudent to appoint your other sibling who is good with money to be guardian of your child’s property to ensure any money they inherit will be invested wisely. For people who appoint a married couple as guardians, the risk is always the couple is divorced or separated when they are supposed to take custody. Thus, many lawyers ask their clients to only appoint the more appropriate person among the couple.

Should the Executor and Guardian be the same person?

It depends. Technically, most jurisdictions have no prohibitions against the executor and guardian being the same person. However,  a complicated estate can literally take years to close. In such a case, do you want your guardian to focus on taking care of the children and providing a loving environment without the “distraction” of making multiple decisions about the estate (especially if the guardian is fit to be a parent but not necessarily the best money manager)?

The analysis becomes contextually. For example, some people with larger estates, uncomplicated or not, like to split the functions to create checks and balances. The guardian will want to maximize the residue of the estate for the children (assuming they are inheriting the bulk of the estate) and will keep a close eye on how the executor is using the estate’s resources.

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These are all difficult questions with no easy answers. Thus, even the most ardent of DIY’ers should seek legal advice for their situation. Good luck.