People often put off preparing their Wills for many reasons. What often brings about a mindset shift is the birth of a child. Suddenly, parents start asking questions they may not have considered before: What happens if I die? Who will take care of my child if my child is still a minor? Who will make important decisions for them?
The answer seems simple: “I’ll just appoint a guardian in my Will,” but here are some things parents should know when making decisions on this important part of their estate plan.
- “I’m appointing a guardian in my Will.”
Not exactly. Since March 1, 2021, Ontario’s legislation uses the term “decision-making responsibility” when referring to the responsibility for making important decisions for a child. Under the Children’s Law Reform Act, a person who is entitled to decision-making responsibility may appoint, by Will, one or more people to have decision-making responsibility for their child after their death. The word “guardian” has not disappeared entirely. Ontario law still recognizes guardians of a child’s property, which is a separate role.
- “The person I appoint will become my minor child’s permanent guardian as soon as I die.”
Unfortunately, it is not quite that simple. A testamentary appointment of decision-making responsibility is temporary. Under Ontario law, the appointment expires 90 days after it becomes effective on the death of the testator unless the person appointed applies to the court for decision-making responsibility within that 90-day period. If an application is made within the 90 days, the appointment continues until the application is disposed of. The appointment in the Will does not eliminate the need for a court process to establish the longer-term arrangement.
- “I must appoint the same person to care for as well as manage my minor child’s inheritance.”
Generally, the recommended approach is to include trust terms in the Will to hold the minor child’s inheritance, with one or more trustees appointed under the Will to manage the funds for the child’s benefit. The trustee(s) can then use the trust funds in accordance with the terms of the Will—for example, to pay for education and certain other expenses. Without appropriate trust terms, a minor child’s entitlement may instead have to be paid into court to be held until they reach the age of majority.For some families, having one or more trusted persons perform both roles may make perfect sense. For others, it may be preferable to have different persons responsible for these very different roles.
The person(s) caring for your minor child will be making decisions about their day-to-day needs and upbringing. The trustee(s), meanwhile, will be responsible for managing the child’s inheritance and making financial decisions in accordance with the terms of the trust.
Having two different people can create a useful system of checks and balances. It may also make sense where, for example, one or more persons are particularly well suited to raising the child, but others have greater financial experience and acumen. The important thing is to consider who is best suited to each responsibility, rather than assuming that the same person(s) must fill every role.
- “The person I appointed will have no trouble accommodating my children in their home.”
Have you actually asked them? This is one of the practical issues that can be overlooked when parents focus on the emotional question of who they trust with their children.Consider the circumstances of the person you have appointed and their values. Do they have enough space? Are they living in a condominium or studio apartment? Do they have children of their own? Would they need to relocate? Are you comfortable with the environment your children will be raised in?
In some circumstances, the estate may have sufficient resources to provide financial support. For example, a Will might permit the family home to be held in trust for the children and used as their residence, potentially allowing the person caring for the children to live there with them. The point is not that every estate should make this type of provision. Rather, parents should think beyond the name written in the Will and ask: what would this person’s life actually look like and what would my children’s life actually look like if they suddenly became responsible for my children?
That conversation should ideally happen before the Will is signed.
- “My chosen guardian lives overseas. That shouldn’t be a problem, right?”
An overseas appointment can raise a number of practical and legal questions. For example:- Can the proposed individual travel to Ontario quickly following your death?
- Will they be able to take the child back to their country of residence?
- What immigration or travel documents will be required?
- Where are your child’s passport and other important documents?
- Will the foreign jurisdiction recognize the Ontario appointment or subsequent court order?
- Will the individual appointed need to make a separate application in their country of residence?
- How will the child’s inheritance be managed across borders?
- Are there tax or reporting consequences in the child’s new country of residence?
If you are appointing someone who lives outside Ontario, particularly outside Canada, the appointment should therefore be considered as part of a cross-border estate plan, rather than simply adding a name to your Will.
- “I don’t need to discuss the appointment with the person I have chosen.”
You probably should. The person you have chosen may be honoured to be asked—but they may also have questions. Would they be prepared to raise your children? Would they be willing to relocate? Do they understand your wishes about education, religion, family relationships or where your children should live? Would they be comfortable working with the trustee(s) of your children’s inheritance? Ontario law states that the person appointed under the Will must consent to the appointment for it to be effective. A conversation with the individual you intend to appoint before the Will is signed can therefore prevent a disruptive situation down the line when it matters most.
The Bottom Line
Choosing who will care for your minor children if you die is one of the most important decisions you can make as a parent. Making the appointment in your Will is only the first step.
A well-considered estate plan should address more than who will care for your children. It should consider who will manage their inheritance, where they will live, how the estate will support them, and what happens if the person you have chosen lives outside Ontario or Canada.
You may not be able to control what happens after you are gone. But you can make sure that, if the unexpected happens, your children have a plan—and the people you trust most are prepared to carry it out.
For Further Reading
When Your Children Live in the U.S.: Estate Challenges – April 15, 2026
Why Do We Procrastinate When it Comes to Estate Planning? – August 6, 2025
Heads-Up: Pitfalls of Dying Intestate with Minor Children – July 2, 2024
If You Like Happy Endings, a Few Entertainment Suggestions
Of course, the theme of minor children and guardians is well understood by Hollywood as a winning formula for a comedy-drama. Here are some film recommendations:
Baby Boom (1987), Apple TV – about a 6-figure New York City management consultant who learns her inheritance is a 14-month-old baby.
Three Men and a Baby (1987), Disney Plus & Amazon Prime Video – about three carefree Manhattan bachelors—architect Peter, artist Michael, and actor Jack—have their luxurious lifestyle turned upside down when a baby girl named Mary is left on their doorstep with a note stating she is Jack’s daughter.
Matilda (1996), Apple TV, Amazon Prime Video – A whimsical fantasy-comedy about a neglected, brilliant young girl who ultimately finds a loving guardian in her teacher, Miss Honey.
— Namratha Sankar