You can name a guardian for your children in your will, but the appointment is temporary. It gives the person you chose standing and a short window to apply to court. Without that application, it lapses — and it never overrides a surviving parent.
Our charges include applicable taxes. Disbursements are extra and billed at cost — itemized upfront, in writing, never hidden.
From $563.87 taxes included
Under the <a href="https://www.ontario.ca/laws/statute/90c12">Children's Law Reform Act</a> a person entitled to decision-making responsibility for a child can appoint someone to have that responsibility after death, by will. Only a parent who is a minor and has never been married can make the appointment in a separate signed document instead. The appointment takes effect on death, but only for a short statutory period — 90 days — during which the person named must apply to the court to be appointed properly. Miss that window and the appointment simply expires.
The appointment does not displace the child's other parent. If the other parent has decision-making responsibility and survives you, the child's care continues with them, whatever your will says. Naming a guardian matters most where you are the child's only parent, where the other parent has died or cannot care for the child, or where both parents die in the same event.
When the application reaches court, the judge decides on the best interests of the child, not on your instructions. Your appointment is strong evidence of what you wanted and of who the child already knows, and it is usually followed. It is not binding, and a grandparent or sibling who disagrees can bring a competing application.
The vocabulary changed in 2021. The <a href="https://www.ontario.ca/laws/statute/90c12">Children's Law Reform Act</a> and the <a href="https://laws-lois.justice.gc.ca/eng/acts/D-3.4/">Divorce Act</a> now speak of decision-making responsibility, parenting time and contact rather than custody and access. Wills drafted before that still work, but if yours turns on the older wording it is worth having it read again — especially if your family arrangements have changed since.
Guardianship of the person and guardianship of property are separate appointments, and they do not have to go to the same person. The relatives who would raise your children well are not always the ones you would trust with a life insurance payout. Ontario lets you split the roles, and in many families that is the better answer.
A minor cannot give a valid receipt for an inheritance. Beyond a small amount a parent is allowed to receive on a child's behalf, money left outright to a child has to be paid into court or held by a court-appointed guardian of property, which means an application, a management plan, accounting obligations and a bond, which the court must require unless it is appointing a parent as guardian and considers it appropriate to excuse one. Nobody plans for this, and every family is surprised by it.
Money paid into court is then released to the child at 18, in full, with no conditions and no adult involvement. An eighteen-year-old receiving a house sale and an insurance policy in one transfer is the outcome most parents would least want, and it is the default outcome when a will leaves everything to children outright.
The fix is a <a href="/trusts-lawyer-ontario">trust in the will</a>. A trust names the person who manages the money, sets the age or ages at which capital is released, and lets the trustee pay for school, housing and medical costs in the meantime. It also keeps the fund out of court entirely, which saves the estate the cost of a property guardianship application.
Ask first. An appointment made without a conversation is the one that gets declined at the worst possible moment. Confirm the person is willing, name an alternate in case they cannot act when the time comes, and tell them where the will is kept and who your lawyer is. Two named alternates is not excessive.
Think about logistics as hard as about affection. A guardian outside Ontario complicates the court application and may move the children away from school, siblings and the surviving side of the family. Keeping siblings together is usually the priority a court will weigh most heavily, and older children's own views carry real weight as they approach their teens.
Write down the reasoning separately. A short letter of wishes kept with the will — why this person, what schooling matters to you, what contact you want maintained with the other side of the family — is not binding but is read, and it helps both the person you chose and the judge deciding.
Then review the appointment after anything changes: a separation, a new relationship, a move, the death or illness of the person you named. Marriage no longer revokes a will in Ontario, so an old will naming an ex-partner's sibling as guardian stays live until you change it. A lawyer-drafted single will, including the guardian appointment, is $563.87 with taxes included — see <a href="/pricing">pricing</a>.
No. The appointment gives the person you named immediate authority for a short statutory period and standing to apply for a permanent appointment. The court then decides on the best interests of the child. Your choice is strong evidence and is usually followed, but a relative who disagrees can apply, and the judge is not bound by your will.
They generally continue caring for the child, and your appointment has no effect against them. A testamentary appointment matters where you are the child's only parent, where the other parent has died, or where both parents die together. If you have serious concerns about the other parent's ability to care for the child, that is a separate application while you are alive.
Somebody applies, and you have no say in who. Relatives can bring competing applications, the court decides on the best interests of the child, and children may be placed temporarily in the meantime. Naming a guardian does not guarantee an outcome, but it puts a clear, documented preference in front of the judge and it usually prevents the fight.
Eighteen, if you leave it to them outright, and in a single lump sum with no conditions. If you want it staged — some at 21, the rest at 25, with education and housing paid before then — you need a trust in the will setting those ages and giving the trustee power to encroach for the children's benefit in the meantime.
Yes, and people often do. It complicates the court application, and moving children out of the province affects school, siblings, and contact with the surviving side of the family, all of which the court will weigh. If your first choice lives abroad, name a local alternate as well so the children are not in limbo while the application is heard.
Open your file tonight — a licensed Ontario lawyer will confirm everything with you by tomorrow.