Parents, Kids and Wills

Last Tuesday, one poster suggested an entry on making a will. Funny how quickly those few words brought me back to the unexpected angst of new motherhood. I remember only the highlights (and low points) of the 24-month period during which I gve birth to my first two children, moved to Minneapolis from Manhattan, got the kids settled into a good daycare center, helped my husband transition to the new, high-pressure position that had necessitated our move, and changed jobs myself. But I do vividly recall repeatedly waking in the night, cold with a new mom worry not covered in all the baby books: What would happen to our children if my husband and I died suddenly? My nightmare became putting together a will, a feeble attempt to provide for my children if I were no longer around to protect them.

It was unexpectedly torturous. First, to find a good (and affordable) lawyer. Then, to find the hours to meet with him and try to grasp bizarre words and concepts like "issue" (translation: children). And the worst part -- talking to my husband about the various awful scenarios: if I died, if he died, if we both died. Who would be the children's guardians? Who would be backup if those guardians died? Did we have "enough" life insurance? What guidelines did we want to put into legalese regarding our kids' education, religious upbringing, college tuition payments? The whole hairball took months to complete. But I'm grateful I did it -- and I pray every day that our wills won't be needed for decades.

I spoke with Molly James, a partner with Hogan & Hartson LLP in McLean, Va., about why every parent should have a will. "Think of it as 'parental malpractice' not to have a will. It is the worst thing in the world for children to lose both parents while the children are minors. If parents have not provided for their children in case of this awful event, their children will suffer even more greatly because of the lack of a smooth transition to a new family, among many other things."

Molly explained the top three issues parents should think about in planning a will:

1. Guardianship: If you don't choose a guardian in a will, the family will need to go to court to determine guardianship, which, at best, adds uncertainty at a time the children need the security that comes with certainty.

2. Trusts for children: if you do not have a will, the child will receive all assets outright at the age of majority, which is 18 in most states. The guardian of the child's assets would also need to be determined by a court if there is no will, and the use of that money could be significantly restricted, and the guardian would need to file detailed accountings with the court, adding to expense.

3. Trustee(s): This person could be the same as the guardian, or it could be a different person if the guardian may not be the best person to handle finances.

If you're wavering, think hard: What would happen to your children in terms of custody if one or both parents died without a will?

"If one parent dies, the survivor has custody," explains Molly James. "If both parents die, the will of the last parent to die controls, or if there is no will, it is up to the courts. If parents are divorced or unmarried, unless the surviving parent has given up parental rights, the surviving parent has the right to custody of the children regardless of marital status with the deceased parent. If a child is adopted, the law clearly states that the birth parents have no rights, so the adopted child is treated the same as any other child of the legal parents."

What happens if a child's parent or parents die without a guardian established? "It is for the courts to determine what is in the best interest of the child. In most jurisdictions, someone has to go to court to petition to become the guardian, and the court will appoint them unless it is not in the best interest of the child. If a child is 14 or older, they can pick their own guardian, again, so long as the court determines it is in their best interest. ... There could be a court battle if more than one person wanted to have custody. Or custody could be appointed to the first person to arrive if no one else knows what is going on. Or, probably the worst of all, no one wants to step up to the plate, and the child goes to foster care."

You can make a will yourself, using an online service or following a book such as The Complete Idiot's Guide to Wills and Estates coupled with a thorough review of the American Bar Association Guide to Wills and Estates, as long as you have the document properly notarized and witnessed. But given how important your will could be in your children's and spouse's lives and since you won't be around to clarify any confusing points, my opinion is that it's worth the time and money to find a lawyer specializing in wills to help make sure you've thought of everything.

According to James, "mistakes will be made if someone does a will on their own, I just can't predict whether the mistakes will be critical. For example, a will is of no effect whatsoever it is it not signed by two witnesses. Because of all the costly errors that could be made (that go far beyond simple execution of the will), it is best to get this done by a lawyer that specializes is writing wills. An attorney that does not specialize in writing a will is likely to make the same mistakes any lay person would make writing his own will. The military provides this service to service men and women either free or at very low cost, so anyone in the military should be able to get this done quite easily."

The best way to find a lawyer is to ask other parents in your area, or contact your local bar association. The American Bar Association can refer you to a lawyer in your state through their Find Legal Helpprogram, and the organization can also find pro bono (free) legal help if you qualify as low-income, disabled, elderly or a victim of domestic violence.

What about you? Do you have a will? Have you selected legal guardians for your children? Do your friends and relatives know what your wishes are regarding your children if you should die? If you've got good advice -- legal, practical or plain old wisdom -- please share it!

By Leslie Morgan Steiner |  November 3, 2006; 7:25 AM ET  | Category:  Tips
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This is a subject that has come up between my wife and I since we're actively trying to start a family, and have few living relatives between us. Who would raise our child should both of die in an accident? My sister living in another state and already over 50 years old? My 75+ year old father? A friend living nearby who we could trust? We have a basic will that essentially just says the other one of us gets everything and where everything goes if both of us die; this would have to be rewritten when a child arrives.

We've not arrived at the answer to the guardian question yet, but we certainly do NOT want the state deciding for us should this tragedy take place.

As for life insurance, we both have more than adequate coverage; if both of us died a child would have a sizable trust fund available, but again we would have to find a trustee or designate the guardian to handle finances, plus any details we would want to add to it.

Posted by: John | November 6, 2006 7:44 AM

We went through this a few years ago and one piece of advice I remember getting that I never would have thought of is: If you assign your children to a couple, think about what you want to have happen if for whatever reason the couple ends up divorced. Given the startlingly high divorce rate in this country, that seemed like good advice.

Posted by: Armchair Mom | November 6, 2006 7:50 AM

I'm always a little skeptical of the lawyers telling folks they must use a lawyer. Or Realtors saying that you must use a Realtor to sell your house...

We used Quicken WillMaker to create our will. We do not have a complicated situation, and they customize the language for the state we live in. And yes, we got two witnesses to sign it.

It's ridiculous to spend several grand on a lawyer when, in fact, it's usually boilerplate.

If you have a very complicated financial or familial relationship (stepchildren, kids from previous marriages, etc.) I can see the purpose of doing that.

Posted by: Neighbor | November 6, 2006 8:02 AM

We went to a lawyer a few years ago and now we each have:

1) A will
2) Financial power of attorney
3) Advanced medical directive
4) Revocable trust
5) Irrevocable life insurance trust (we each have $2.5 million in life insurance)


We are working now with the lawyer creating trusts for the children.

As for who gets the children, we have them going to my sister (married with 2 children of her own) but the children's finances are controlled by my wife's sister. We did this so we can guarantee that the families stay together (i.e. my family doesn't keep the children away from my wife's family - not like that would happen but what the heck, why not).

We chose my sister because she was married at the time (wife's sister wasn't) and because our religious and political views (the ones we want our children to follow) more closely match my sister's (and her husband's) than my sister-in-law's. We also have custody going to my sister (not to both) incase there is a divorce (unlikely).

Posted by: Father of 2 | November 6, 2006 8:09 AM

[probably the worst of all, no one wants to step up to the plate, and the child goes to foster care.]

This does't make any sense to me. If nobody wants to take care of your kids, how is a will supposed to help. Can I specify Bill Gates as the legal guardian of my children if we parents kick the bucket? Or what?

I think Foster Care is getting deamonized here. My sister and her DH is fostering a baby, though not by death in the family. The extended family loves him, and even the parents recognize that their own child is getting raised in a more wholesome environment than they can provide for themselves.

My wife and I have no will. Instead, we have a close family network and if trajegy does strike, we are confident that the courts will come up with a decent plan. Anyway, things change, laws change, people change and anything can be contested in court, even though it is specified in writing on a will or not.

Posted by: Father of 4 | November 6, 2006 8:25 AM

I agree, Neighbor. We did use a lawyer to draw up our will but mostly because we do have some minor complications (namely that my two older children have a different father than my husband, so he is named as their guardian but not their trustee.) But it cost us a couple of hundred dollars, not several grand!

Posted by: momof4 | November 6, 2006 8:27 AM

Father of 4

"My wife and I have no will. Instead, we have a close family network and if trajegy does strike, we are confident that the courts will come up with a decent plan."

If you leave your estate planning up to the government, your close family network may not be of much help. Your confidence in the courts is misplaced; your wishes will not be known nor respected. Someone in your family may develop special needs and require more than the others. Your attitude is immature and irresponsible.
Even my pets are provided for in my will; your children deserve at least the same.

Posted by: Liz | November 6, 2006 8:34 AM

If you don't have a will, not one penny of your estate would go to charity. Is that your intention?

Posted by: George | November 6, 2006 8:40 AM

"my two older children have a different father than my husband"

Just pointing out before anyone else does that I'm aware of how this sounds!

I mean, of course, that my husband is not the father of my two older children. Not that my husband's father is not my two older children's father, which is hopefully obvious. ;o)

Posted by: momof4 | November 6, 2006 8:42 AM

Father of 4

If you have such a close family network, why do you post so many inane details of your life on the Internet?

Posted by: June | November 6, 2006 8:51 AM

Do you people really have nothing better to do than to pick on Father of 4?

Posted by: Must we go there? | November 6, 2006 8:55 AM

Having recently looked at both my grandparents' wills and my own parents' wills, is there any reason why a person couldn't duplicate these wills (provided they cover one's particular circumstances and you change the names of the parties involved)? They are pretty boilerplate, but cover the essentials.

We are currently "malpracticing parents" in the sense that we have no will in place (although it is by definition in our family that the godparents would step in should anything happen to both of us). We do have life insurance.

Posted by: marc | November 6, 2006 9:01 AM

[If you have such a close family network, why do you post so many inane details of your life on the Internet?]

June,

1. entertainment.
2. I get honest feedback and critisism from anonymous people like yourself. It gives me a basis on how to improve myself as a dedicated husband and father. In other words.. Free therapy.

Liz and June, thanks for your contribution already today!

Posted by: Father of 4 | November 6, 2006 9:08 AM

Not a nice thing to label all parents without wills guilty of "parental malpractice". That's pretty strong blanket accusation.

There are many families with very little assets, no remarriages or steps, close family ties and with everyone on the same page as to the parents' wishes. A will is a good thing to have, but not the dire immediate necessity that its made out to be.

I'm planning to use Quicken in the near future. We're a middle class family so no trusts or million-dollar insurance policies, no family members trying to grab our puny assets.

BTW, remember that a will needs to be updated from time to time. Amendments will cost money.

Posted by: Mr.Honda | November 6, 2006 9:08 AM

Hey Leslie,

I agree with Mr.Honda.
You want a "nicer", more polite blog, right? So why put an inflammatory statement from that lawyer calling all parents without wills as guilty of "parental malpractice"?

Posted by: Agree | November 6, 2006 9:13 AM

Father of 4

"My wife and I have no will. Instead, we have a close family network and if [tragedy] does strike, we are confident that the courts will come up with a decent plan."

I'm not sure how long it takes for this sort of court decision to be final, but wouldn't it show more love and forethought to provide your 4 kids with the certainty of knowing where, and with whom, they're living? also, doesn't this mean you're burdening your family with court costs and lawyers' fees to resolve this critical question? If you and your wife die in a car wreck in the middle of the school year, does your close family network know whether you want the kids to stay in the schools they currently reside in, or relocate to be with -- who?? of the many family members with whom you are close, who are the kids going to stay with, initially? Are you sure that someone in your close family network wants to take all 4 and keep them together? or would someone want only the older 2 children? or would someone want 3 out of 4 -- and not the boy you've described in the past as as "annoying"?

I'm a little puzzled that someone so loving wouldn't want to (or feel obligated to) give his kids the security of knowing what would happen to them in the event they already have to deal with the most significant loss of their lives. Have you just not wanted to deal with choosing which of your family circle is the best fit for your kids? or are you truly avoiding acknowledging that bad stuff happens?

Posted by: Anonymous | November 6, 2006 9:13 AM

"There are many families with..... close family ties and with everyone on the same page as to the parents' wishes."

This means nothing in court.

Posted by: Anonymous | November 6, 2006 9:14 AM

to Marc,

the law with respect to wills is different from state to state. and those of us who practice in other areas don't keep up with the law as it develops with respect to wills. It might read like boilerplate, but to be enforceable, phrasing matters. unless the will you intend to copy was drafted by a trusts and estates attorney within the last 2 - 5 years, and practicing in the same state as the one in which you reside, you might well be simply wasting your time to copy it over and change the names.

btw, we paid an attorney to draft our wills, advanced medical directive, living will, and financial power of attorney less than $1200 6 years ago. We borrowed money from my 401(k) in order to get it done because we deemed getting it done and done correctly to be the right things to do. It's alot of money at the time you do it, but it addresses critical family issues for some time to come. Most importantly, we thought, it forced us to have honest conversations with each other both about guardianship for our kids and, with respect to each other, when we each wanted to pull the plug.

Posted by: NC lawyer | November 6, 2006 9:23 AM

Another thing to consider is that your layabout child will inherit an equal share with your other children if you have no will. If you have no medical directives, the layabout child may be the one to decide where to place you in a nursing home and if and when to pull the plug.

Posted by: Anonymous | November 6, 2006 9:36 AM

We went to a local family attorney who drew up will for both of us several years ago. The total cost was only about $150 and we have the peace of mind knowing that these essential details have been handled.

If you don't have a will, let this article be a reminder for you to take the short amount of time it takes to get one. You'll be doing your loved ones a huge favor.

Posted by: Rufus | November 6, 2006 9:36 AM

I don't have a will either. My husband and I were talking about this over the weekend or arguing about it as you could say. We know we need one, but we don't agree over the choice of guardian. The problem is that if I roll together all my siblings they would be perfect, separately they all have issues. It's a really tough decision.

I also agree that since we are all posting on this blog, is it really necessary to hurl insults at someone else for posting on the blog.

Posted by: Scarry | November 6, 2006 9:37 AM

why would a lawyer pay another lawyer over a thousand dollars to do something this basic? Remind me to not ever hire Lawyer A for anything.

Posted by: Question | November 6, 2006 9:37 AM

I don't think anyone is "demonizing" foster care. Foster care is for desperate situations and is not ideal. It is strangers raising your children and some foster situations may be good and some are not. Plus, once the kid is 18, they are on their own. No college unless the kid can pay for it him/herself. And most children in and coming out of fostercare have a higher rate of mental illness, homelessness, etc. Of course there are other factors playing here, but why would you advocate or want for your children a high risk situation like that?

With a will, you designate who you want to raise your children. Your situation is unwise even if you have the closest, most wonderful family. The will makes your wishes known and it doesn't matter if you write it on your own or have a lawyer do it--that's not the point. I'm sure you family would be relieved that you made preparations and plans for your children. It is unwise to not provide for your children should you and your spouse die. I think the Leslie's and some of the other writers' advice is good.

Posted by: To Fo4 | November 6, 2006 9:40 AM

Get an attorney. You get what you pay for, right? So pay $40 for Quicken and wait to see if it all works out, or pay the couple of hundred dollars for a legal document and sleep better at night.

Posted by: Anonymous | November 6, 2006 9:41 AM

Get an attorney. You get what you pay for, right? You aren't checking out webmd and then performing surgery on yourself - so pay $40 for Quicken and wait to see if it all works out, or pay the couple of hundred dollars for a legal document and sleep better at night.

Posted by: Anonymous | November 6, 2006 9:42 AM

to Question:

I presume you understand that engineers and physicians have different areas of expertise and knowledge. Lawyers are no different. Smart ones know when they are dabbling in an area about which they know squat. That's why it's called "malpractice" to do otherwise. I don't know anything about real estate law either. Do you?

I don't work for free for other lawyers, nor do they do free work for me. If you offer free services to everyone else in your profession, and if you have the spare time to engage in those free services, it strikes me that your services are not in much demand.

Posted by: NC lawyer | November 6, 2006 9:43 AM

I did our will on nolo.com. We have an uncomplicated situation and I think the generic will, customized for Washington, DC, was fine for us. (I also don't happen to have thousands of dollars to blow on a lawyer.) As for choosing the people to whom you'd leave your children, we initially made the wrong choice, I now realize. Although the sister we chose would love our children, moving in with her would require a huge transition for the kids (move to rural area, changing schools, moving away from friends, living with someone who would just be learning to be a parent) at a time when change should be minimized.

Posted by: dc | November 6, 2006 9:46 AM

There seems to be a pattern developing here about folks who tend to put off making wills.

Posted by: Anonymous | November 6, 2006 9:47 AM

it just strikes me that after several years of law school, that you should be able to draft a simple will, even if it's not your area of expertise. it's not like someone is telling you to represent yourself in court for murder if you're not a criminal lawyer. it's kind of like the surgeon who doesn't freak out at the smallest little thing and take her own child to the pediatrician but rather uses her medical training to make decisions and treat the child at home. or the accountant who has a degree but hasn't ever done income tax returns for others but is fully capable of doing his own.

Posted by: Anonymous | November 6, 2006 9:50 AM

NC lawyer:
"If you offer free services to everyone else in your profession, and if you have the spare time to engage in those free services, it strikes me that your services are not in much demand."

Physicians routinely offer free services to other physicians. It's called professional courtesy.

Posted by: Mr.Honda | November 6, 2006 9:51 AM

That's like asking why an engineer would hire another engineer. Or, why would a doctor hire another doctor to perform a certain procedure?

"The Law" is not some big book any lawyer can just look up the answers in. To get things right, it takes experience and detailed knowledge of a particular field. Things like wills aren't as "simple" as most people would like to believe.

Posted by: to Question | November 6, 2006 9:51 AM

When a doctor uses his/her experience not to take thier child in for every bump and scrape - they still have the option of watching it and, if it becomes more serious, getting treatemnt later. For wills (and man other legal procedures or documents), problems in the intial action/inaction to show themselves can't be remedied.

Posted by: J | November 6, 2006 9:56 AM

Sorry - I hit "submit" by accident before I could proof-read. But, I think my point comes across.

Posted by: J | November 6, 2006 9:58 AM

To the folks here who used software or nolo.com to do wills: do you know if those systems are OK for people who are divorced with kids, or are they really for the simplest situations? I am a divorced mom of two, and my last will predated my divorce, so I know I need to redo it. But I would like to avoid using a lawyer (due to cost), if possible, and do it myself.

Posted by: amnesiac | November 6, 2006 10:01 AM

if I guess and mess up a real estate transaction, even though I know zilch about real estate law, it's about money. If I guess and screw up our wills -- an area that I never took a class in and documents I've never reviewed before -- I screw up our children's lives.

btw, anonymous at 9:50, note that having someone with appropriate expertise draft your will done generally includes providing living wills for you and your spouse. Terry Schiavo, anyone? anyone?

and to Mr.Honda, if the trust and estates lawyers in our firm were responsible for drafting wills for free for all of the other lawyers, paralegals, secretaries, and document managers, when do you think they'd have time to do their jobs for paying clients? there are 5 of them, and 1500+ of the rest of us. there are favors, otherwise known as professional courtesy, and then there's taking advantage of a group of professionals who provide a service everyone needs.

everyone wishes they had a free divorce lawyer and a free trust and estates lawyer, either in the family or down the hall. most of us are professional enough to understand that our colleagues' time and services are worth money.

Posted by: NC lawyer | November 6, 2006 10:05 AM

Thanks for bringing up this topic, Leslie! I have debated writing a will for years, as I do have a guardian in mind for my son. However, so far I have failed to commit to it because I fear it would be disregarded in the event of my death to begin with. As was pointed out, for nonmarried parents, the non-custodial parent will get custody of the child. Personally, I do not consider this scenario in the best interests of my child, but from what I understand, any guardian named in my will would still have to go to court with my child's father, and I don't know what their chance of winning would be. So I have had a hard time justifying asking someone not just to be my son's guardian, but to also fight like hell for him in court ... it's a dilemma for me.

Posted by: TakomaMom | November 6, 2006 10:16 AM

Everybody has a will. They either have the default one the state writes for them, or they have the one they write for themselves. I much prefer the one I had written for myself because I know my family's needs better than the state does.

My DH and I recently went beyond mere wills and set up a revocable trust. I LOVE it. It allows for the fact that we are a blended family with children at different life stages. It does not (immediately) treat all the kids as equals because not all of them are through college yet and it would be unfair to penalize the ones that haven't finished (or started) by divvying up the estate as if all are on equal footing.

In addition, if one natural parent (in a remarriage situation) isn't capable of handling custody, it is helpful to express one's wishes as to guardianship. The natural parent might be awarded physical custody anyway, but the named guardian is in a much stronger position to advocate on behalf of the child if you recognize them.

Finally, I've seen studies that say that, on average, an inheritance of any size (be it $2k, $20,000, or $2 million) is gone within 18 months. Granted, that's an average, but WOW. Hence trusts can make sure your kids don't blow it all at once, especially if they would otherwise get the money when they reach majority.

Posted by: Everybody has a will | November 6, 2006 10:19 AM

A little more than a year ago my husband and I (finally) made wills and living wills to determine guardianship of our two children (age 5 and 1 at the time). There are two points I would like to emphasize regarding this topic:
First, it is incredibly important to retain good counsel (no vested interest here, neither my husband nor I are lawyers). We were incredibly fortunate to have an attorney who was straightforward, honest and well informed who clearly laid out options for us. In the end, we opted having primary guardians (my sister and her husband first) and then my sister-in-law and her husband second with a non-family trustee to manage finances. We are at peace with this decision because we know our kids will be loved and well cared for.

Second, I think there is a balance to be struck by moving quickly to get a legal will to resolve issues of guardian/ trusteeship and taking the time to do what is best for your children. Specifically, you want to make sure the people you have in mind for guardians are up to the task. For us, the most important consideration was appointing guardians to love and care for our children like we would. My brother and law and his wife at first glance are the ideal candidates to serve as our kids' guardians: they are in good health, are financially secure, and are good and decent people. Still, in a casual conversation with my brother-in-law's wife she indicated she didn't want to know the dates of our kids' birthdays because it was "just too much to keep track of". I like this woman but hell would freeze over before I'd appoint her guardian of my children.

Sorry for the long post; I appreciate this forum for talking about such an important matter.

Posted by: rosie04 | November 6, 2006 10:24 AM

I couldn't agree more with NC lawyer. In fact, just having taken the MPRE (that's the Multistate Professional Responsbility Exam, one of the bar requirements) this past Saturday, I know that attorneys who practice in areas in which they are not "competent" (i.e., an employment lawyer drawing up a will) are subject to discipline from the state bar counsel.

It would be akin to an oncologist performing open-heart surgery. It's just. Not. Done.

Posted by: Anonymous | November 6, 2006 10:25 AM

we're talking about a lawyer doing his or her OWN will, not doing one for someone else. surely they wouldn't be disciplined for that. would a teacher who was only certified to teach high school science be disciplined by the state teacher certifying board if they taught their own child english? would a certified management accountant (not certified in tax preparation) be disciplined by their certifying organization for doing their own taxes? give me a break

Posted by: oh good grief | November 6, 2006 10:30 AM

I am a lawyer who practices in an obscure area of administrative law. I did not draft my own will. I asked a friend who practiced Trusts & Estates in a big firm if she could recommend a reliable solo practitioner. I went to the solo practitioner who did give me a "professional courtesy" discount. I think this is very normal. Don't think that generic boilerplate wills are going to cover everthing. There could be mistakes that prove to be of no consequence, and there could be mistakes that prove to be very costly. Why would you want to take that chance? I now have peace of mind knowing I have done everthing I can to make sure that everyone I love is taken care of in the manner I would like and that my assets will be distributed according to my wishes.

Posted by: Arlington, VA | November 6, 2006 10:32 AM

My wife and I have not yet put together our will.

We have a pretty simple situation, however, reading today's blog has made me think of things we've never considered.

We first were in disagreement about who would be the guardians for our kids, but we've resolved this. Yet, after reading this blog, I'm having second thoughts but still think they are the right guardians.

We've got adequate insurance to cover the costs for our kids through college, but after that they're just gonna have to hope I pass on after they are on their own.

Living trusts, irrevocable trusts, executor, etc. are all issues we need to work out.

Fo4, I agree you should at least choose who would be the best match for your kids. Sometimes the best match may not be the one that would step forward first.

We selected my brother in law, and since they just had their first baby this last Saturday, they were a tough choice, however, my kids love he and his wife and they have the same religious beliefs we do.

My sister would probably be a better choice as far as parenting knowledge, her kids are well behaved, respectful and good kids, but since she has different religious views it was nice to have my wife's younger brother reach an age of early parenthood, and makes the decision have a higher payoff in the long term.

As much as we feel like immortal teenagers, we owe it to our kids to plan. Though parental malpractice? A bit over the top I think.

Posted by: Mr. EstrogenCentral | November 6, 2006 10:33 AM

"we're talking about a lawyer doing his or her OWN will"

Again, if the lawyer does not have sufficient knowledge and experience, it is foolish to draft his/her own will.

Posted by: Anonymous | November 6, 2006 10:34 AM

I was responding to the person who said, "why would a lawyer pay another lawyer over a thousand dollars to do something this basic? Remind me to not ever hire Lawyer A for anything."

I took a semester of Wills, Trusts & Estates last spring. And then I promptly hired a wills lawyer to draft my husband's and my wills. I'm not saying that a lawyer who drafts his or her own will would be subject to discipline, I highly doubt that. But not every lawyer is competent to draft a will simply because he/she graduates from law school.

Posted by: Anonymous | November 6, 2006 10:36 AM

"My wife and I have no will. Instead, we have a close family network and if trajegy does strike, we are confident that the courts will come up with a decent plan."

Great, Father of 4. This is the kind of "plan" that clogs up the courts because people didn't make responsible decisions when they were in a position to do so.

You and your wife could draw up a simple legal document that would enable the placement of your children in event of a tragedy. Instead, you opt for the lazy way out -- imposing the burden of decision on an already overburdened legal system.

That is both irresponsible and selfish.

Posted by: pittypat | November 6, 2006 10:39 AM

I don't know why some lawyers charge such ridiculous sums. A basic will ( meaning one that doesn't involve large estates with complex financial arrangements ) shouldn't cost more than a few hundred dollars. Now, estates worth millions with complex assests (real estate, stocks, trusts, expensive items) do cost more to write up because sometimes, people choose to make divvying up their estates very complicated.

That having been said, I agree with Leslie that it is at a minimum, pretty irresponsible to NOT have a will, especially given the cheap means available for will preparation. I was adopted and even though I didn't lose my parents to tragedy, the orphanage, the seperation, the transition to a new country and family were VERY traumatic. My parents have the therapy bills to prove it. My husband and I paid about $250 for our wills, that included power of attorney, a medical directive, guardianship, etc. Of course you should know that a will CAN be contested but for the most part, it is still good for your families to KNOW what your opinions are on how your children should be provided for, even if they disagree.

We have a close married friend with similar values as our children's guardian. He is also a doctor so we know our children will be financially provided for, even without our life insurance. My husband's uncle, a banker, is charged with controlling the financial assets for our kids. Our children will come into their full inheritance at 25, prorated for their ages.

Our families know what is in our wills and luckily, they are all at peace with it. I know what is in my parent's wills and it is very straight forward. The biggest challenge of my parents will is that they have significant assests. I also have a much younger still minor brother. Technically, my sisters and I all share guardianship responsibilities. I hope that is an issue we will never have to face but we will cross that bridge when we get there.

Posted by: LM in WI | November 6, 2006 10:40 AM

"we're talking about a lawyer doing his or her OWN will, not doing one for someone else."

Ever heard the old saying "A lawyer who hires him/herself has a fool for a client"?

Posted by: Anonymous | November 6, 2006 10:49 AM

Well, I'm with all the other lawyers on having someone who specializes in trusts & estates draft your will. There are too many weird little twists and turns in state law on wills - what you do learn in your first year of law school is that very small differences in language and phrasing can have huge consequences. And, unlike other areas, the only way to find out if you did it right is when you die and it gets challenged in court - no second chances.

That said, we've been putting it off too - we have a disagreement about who should be our son's guardian, and that's really the main thing that we need to settle in our wills, since we don't have much in terms of an "estate". But this is a good reminder that we need to work it out and get it decided.

Also, a quick note on Leslie's remark in the column that a will has to be signed by two witnesses. Even this requirement varies from state to state. In some states, a will prepared by the individual isntead of a lawyer must be written in longhand, in some it can be typed. In some states both witnesses have to sign at the same time, in some states they can sign separately. If you're doing your own will, you need to do the research to make sure you have it right for the state in which you live, and not go based on a general statement.

Posted by: Megan | November 6, 2006 10:50 AM

You might as well have my cat draft your will as me. I didn't take Wills & Estates in law school and there was one question on the Bar Exam on the subject and this was 20 years ago!

But, I can get your loved ones out of handcuffs lickety-split!

Posted by: DZ | November 6, 2006 10:55 AM

DZ - Your cat's knowledge of state law probably beats mine.

Posted by: NC lawyer | November 6, 2006 10:58 AM

We have always had a will even before children. Our guardians have changed as ours kids grew. When my kids were babies my wonderfully nuturing sister who lived on the west coast was great. Now that they are teens where disrupting their lives would be traumatic, my local brother is it. We also have always had the trustee for their assets be different than the guardian. I love and trust the person my children would go to but I think having checks and balances in place for my childrens financial future is a good thing.
Also,from the time my children were 10 or 11 they knew who their guardian would be if anything happened to us. This actually gave them a sense of security rather than disturbing them. My brother observes and asks questions about our parenting decisions because he takes his role as potential guardian seriously.

My husbands father died without a will and it has taken us almost 15 years of his mother givng the IRS maximum gift to transfer prorperty that was intended to go to the next generation not to the spouse.

If you don't have a will you are leaving a mess for others to clean up.

Posted by: Maryland Mom | November 6, 2006 10:59 AM

We have always had a will even before children. Our guardians have changed as ours kids grew. When my kids were babies my wonderfully nuturing sister who lived on the west coast was great. Now that they are teens where disrupting their lives would be traumatic, my local brother is it. We also have always had the trustee for their assets be different than the guardian. I love and trust the person my children would go to but I think having checks and balances in place for my childrens financial future is a good thing.
Also,from the time my children were 10 or 11 they knew who their guardian would be if anything happened to us. This actually gave them a sense of security rather than disturbing them. My brother observes and asks questions about our parenting decisions because he takes his role as potential guardian seriously.

My husbands father died without a will and it has taken us almost 15 years of his mother givng the IRS maximum gift to transfer prorperty that was intended to go to the next generation not to the spouse.

If you don't have a will you are leaving a mess for others to clean up.

Posted by: Maryland Mom | November 6, 2006 10:59 AM

Having no kids and no sizable estate (just books and pets) I was able to draw up a simple will myself. However, it seems that with kids and/or a sizable estate it's time to lawyer up. The American Bar Association is a good place to look for recommendations, and if you live near a law school you might ask their alumni office.

Trusts are a good idea if there's any kind of sizable estate - even for kids who are of age. For instance, I know a family where the only daughter is set to inherit a sizable sum once her parents die. Daughter is an adult, but feckless. Parents have (wisely) tied up that money in trusts until Daughter is of retirement age!

One thing I wonder about, is what if there is no-one suitable or willing to be a guardian to the kids? In this era of smaller, scattered families, that's a valid question. What if there is nobody who is capable, caring or committed? What if no-one wants the "special needs child?" What if guardianship means taking on a potentially nasty and expensive court battle as in Takomamom's case? It's assumed that every family has a willing grandparent, aunt or uncle, or family friend willing to step up to the plate, but this is not necessarily so.

Posted by: Flyonthewall | November 6, 2006 11:01 AM

"It's assumed that every family has a willing grandparent, aunt or uncle, or family friend willing to step up to the plate, but this is not necessarily so."

My brother and SIL asked SIL's parents to be guardians, assuming that they would say yes in a heartbeat. Not so much. They not only said no, but seemed offended at having been asked. Think about your options carefully and make sure you talk to someone before you name them in your documents.

Posted by: anon for this | November 6, 2006 11:09 AM

Given our impending arrival, DH and I need to do the will thing and are discussing what to do regarding the guardian situation. His parents are great, but pretty old (his dad is 70), my parents are younger but wacky (I love them but not sure I would want them raising my kids), his sister is still too young (20 and in college) and it seems like an awfully big thing to ask of friends (we have some friends we love who we think would be perfect, but we think it might be too much to ask).

Perhaps we make a provision that they stay with his parents and then should they die (hopefully many years from now) his sister (who will then be older, employed, etc.) would be the guardian. I don't know-- seems fraught with potential pitfalls (what if his parents live to 95 but are in declining health for the last 15?).

What have others done about choosing guardians when there doesn't seem to be anyone just right around?

Posted by: JKR | November 6, 2006 11:11 AM

If you don't have a will, not one penny of your estate would go to charity. Is that your intention?

I have young children to provide for. As long as that is true, not a single penny of my estate will go to charity. Charity begins at home.

Posted by: Anonymous | November 6, 2006 11:12 AM

"It's assumed that every family has a willing grandparent, aunt or uncle, or family friend willing to step up to the plate, but this is not necessarily so."

circumstances, and our children's needs, change over time as well. being uprooted and sent to live half-way across the country to our BIL's, the "best" fit family, is fine while our kids are young, but the older they get, we will consider approaching close friends from church and/or the parents of close friends of our kids to gauge their willingness to step in.

Definitely don't put someone in your legal documents without their consent, and make sure you let them know that they can decline to consent without hurting your relationship. The last thing you want is someone raising your kids who doesn't want to do so, and just didn't know how to tell you.

Posted by: Anonymous | November 6, 2006 11:14 AM

We hired a lawyer to do
1) A will
2) Financial power of attorney
3) Advanced medical directive
4) healthcare power of attorney
5) Irrevocable life insurance trust
I do not think a will is a "basic" document particularly if you have kids. My husband and I just completed all of this last year after my mother died unexpectedly and suddenly with no will. Even though all of her children were grown and her assets were fairly well defined, it has been a nightmare of nearly two years going through probate. With a will we would have been able to settle the estate much faster and with less emotional trauma. I believe that it is really not fair to your children to put them through the legal uncertainties probate brings without a will.

I understand how difficult it is to actually make the decisions that go along with writing all these documents--particularly the guardianship part. We actually drafted several clauses that take into account whether the couple we picked was still married, where they were currently living, and we made sure that we made a different person the financial trustee for the kids so that there would be checks and balances. We wanted also wanted to make sure the couple we picked would keep our relatives involved in the children's lives. It was definitely a very difficult conversation to have both with my husband and also with those we chose. But it's such a relief to have done this.

I highly recommend hiring a lawyer. We interviewed several to find one we were comfortable with. The price for the simple will was well under 1,000 (more in the $300 range). We spent a bit more because we did all of our legal documents at once. It was definitely worth it to me to have hired someone who was up to date on current legal issues and was able to give us the benefit of her experience so that we would not draft clauses that actually end up operating inconsistent to our wishes.
I think it is something everyone should consider (although my husband and I waited until we had been married 10 years with two kids out of toddlerhood, it is something I wish we had done earlier).

Posted by: downt | November 6, 2006 11:19 AM

"What have others done about choosing guardians when there doesn't seem to be anyone just right around?"

we held our collective noses and asked/selected the best of the unappealing choices, e.g., the most responsible couple with the best parental judgment on the most issues. my 3 siblings are either up to their eyeballs in alligators as it is, or have a history of problematic parenting choices. My parents and his are over 80 years old. It still makes me cringe to think of my kids being raised by the wife of the couple we asked.

Posted by: Anonymous | November 6, 2006 11:25 AM

so, how many of you have EAP? Free legal stuff through work you've never even called. Go call them, they'll start you off for free.

Each of you needs a power of attorney, even if you have no family etc. It really helps your family/friends if you bonk yourself hard on the head and need someone to get let into your apartment to feed your dog for a few days, pay your bills, and be allowed to call your primary to find out what pills you're allergic to. Its not that tough. At lunch, go print something boilerplate out, fill it out. really, good idea, its DC, heads are thick, but really, not a bad idea.

The less thinking the courts need to do, and the less second guessing your family needs to do as to what you would really want especially when they are suffering is the biggest favor you can do for them. Otherwise they need to go to court, pay their money take off from work to try to deal with stuff that you could have filled out and signed beforehand that would at least give guidance.

Plus when you write the document, it gives you a chance to talk to people about it, and see if they're ok with it, they might not be. They might have a hidden cancer or something. Or they may think to tell you in the future of a problem because they know they're next in line. The courts are there as a fallback in case there's nothing else, don't make your friends and family try to figure out what you were thinking before you died, or passed out for a few months.

Posted by: ljb | November 6, 2006 11:26 AM

By the way I am lawyer who did not draft her own will or any of the other legal documents. It is not my area of expertise. Particularly after having been appointed executor of my mother's estate, I saw how incredibly difficult the process can turn out to be and I wanted to make sure that the wills my husband and I have are well drafted.

Sure not all lawyers need to hire other lawyers to help them with every legal matter. But in this case when it comes to what I wanted to happen with my kids after I died I wanted to make sure I did this correctly.

Posted by: downtown mom | November 6, 2006 11:37 AM

***If you don't have a will, not one penny of your estate would go to charity. Is that your intention?

I have young children to provide for. As long as that is true, not a single penny of my estate will go to charity. Charity begins at home.

Posted by: | November 6, 2006 11:12 AM
****

Exhibit 1 for the Estate Tax.

"Faith Based" giving/charity doesn't work.

Posted by: Anonymous | November 6, 2006 11:38 AM

Mental illness runs in the family so we had to consider that it may express itself in one of the kids one day (generally surfaces in the 20 - 30 year age range, though it can vary). Thus, we decided that kids should get money parcelled out to them, with the last bit given out when they are at least 40 (maybe 45, I just can't remember). That way, if something should pop up, the trustee can set up something for their long term care, rather than just hand over the money, and, we hope they won't end up homeless.

I know this situation is extreme, but we thought it best to cover all eventualities and, having seen mental illness expressed and wreak havoc in other family members, realized that we wanted to do all we could to offer a safety net should we go to our eternal reward (or punishment, I suppose) while the kids are yet young.

Posted by: Another consideration | November 6, 2006 11:44 AM

"I have young children to provide for. As long as that is true, not a single penny of my estate will go to charity. Charity begins at home."

Whoa! If you can't carve a couple of bucks out of your estate for charity/causes you are one cold-blooded individual.

Posted by: Elaine | November 6, 2006 11:46 AM

We give a sizable portion (for us - > 10%)of our income to charitable causes each year, but our "estate" which probably will be less than $30,000 needs to go to our kids to provide for their needs. We have life insurance, but life insurance isn't part of your estate. It's supposed to replace your income and, again, provide for the kids so they are not a financial burden on their guardians.

where are you coming from making such a judgmental statement, and engaging in name-calling, based on so little information about the original e-mailers finances and family situation?

Posted by: to Elaine | November 6, 2006 11:51 AM

We did a will after our daughter was born 5 yrs ago -- she was born shortly before 9/11, and that really crystalized the need to plan for the unforeseeable.

Guardianship was the toughest thing to think about, but the most important -- that's the part that lets me sleep at night, because I know my stepsister will love and protect my kids like her own. But I was surprised at how important a trust became when I started thinking about it. We don't have huge life insurance -- we planned based on what the other spouse would need to get by through college, which is way less than the insurance people tell you you need. But I suddenly realized if we both died together, our kids would get both policies, which together is WAY more than any kid should have access to (especially one who is reeling from losing both parents).

So we wrote up a simple trust. We authorized the guardian to spend that money however she sees fit (I trust her with my children, who are far more precious, so I trust her to spend the money wisely in their best interest); any left over goes to the kids (+ charity) when they reach certain milestones, like graduating college/serving in the military, turning 30, etc.

FO4, I would encourage you to do a simple will -- a lot of those form books or internet programs will work just fine if you make sure to do the signing and witnessing right. I know you love your family, so I can't imagine you'd want them tied up in court while the state decides who takes care of whom and who gets what (not to mention the legal fees). Basically, the court will appoint a guardian, anyone who disagrees will have to hire their own lawyers to dispute that, and it can end up costing a LOT more money than just doing a will in the first place. A will would be a tremendous gift to the people you leave behind.

I'll also pass along the best advice I got. There are a lot of things that you want to pass along to your kids, but that you can't really write into a will. Ex: my daughter will get a car at 16 over my dead body. Except if I AM dead, I still don't want her to have a car. But you can't really micromanage from the grave, unless you want an 800-page will (which will turn out to be wrong anyway -- what if my daughter's really responsible and needs a car to get to her job?). So my attorney suggested I write a side letter to the guardian describing how we want our kids to be raised. It's not enforceable in court, but it at least gives my stepsister a baseline from which she can decide what to do. (Added benefit: if it's a decision the kids don't like, they have to blame me, not her!)

So FO4, even if you don't write a will, please at least write out a letter like that -- if there is a court fight, it won't mean much, but if everyone understands what you really want to happen, maybe it could help prevent a fight in the first place. Plus I have tremendous peace of mind knowing that I have written down my goals and dreams of how my kids will be raised, even if I'm not there to do it.

Posted by: Laura | November 6, 2006 11:54 AM

My brother and SIL asked SIL's parents to be guardians, assuming that they would say yes in a heartbeat. Not so much. They not only said no, but seemed offended at having been asked.

****

Not funny in real life, but that does remind me of that sitcom episode, was it Mad About you? Where no one would agree to take the children....then everyone decided they wanted the kids. Then there's the situation where there is hurt feelings from not being selected. Definitely a good idea to discuss with every one beforehand.

Posted by: Anonymous | November 6, 2006 11:56 AM

We have a will with guardians and back-up guardians (lawyer "made" us name a back-up. that was difficult because we had a good choice for guardian-- my brother-- but not so clear who else might be suitable.)

What I want to say is, my children have asked me, "What would happen to us if you & Dad both died?"

They said this before reading any "Series of Unfortunate Events" books or watching the movie but I can easily imagine those inspiring the question. The movie makes it very explicit with Klaus angrily asking his sister, "How could [our parents] do this to us? How could they not have a plan?"

I've been able to give the kids a specific and honest answer, while assuring them that it's really unlikely. I wouldn't like to face that question from the children without having made a will.

Posted by: Green Mtns | November 6, 2006 12:04 PM

Agree with Laura - if you're choosing between having NO will and doing one on your own, you should still do one on your own. At least then there's a written record of your wishes, and even if you much it up a bit, your family and the court has some direction even if the document itself turns out to be unenforceable. A T&E atty is best, but if you really can't do that, do something on your own, you owe it to your family.

Posted by: anotherlawyer | November 6, 2006 12:08 PM

"We have life insurance, but life insurance isn't part of your estate."

This is a very good point. Life insurance is not automatically part of your estate --it goes directly to your named beneficiaries. Which means, if you and your spouse both die, your kids (if they are secondary beneficiaries) will inherit both policies, lock, stock, and barrel, at 18, and be able to do whatever they want with it.

That's fine if that's what you want. But most people I know don't. So if you want to avoid that, you can set up a trust for your kids, and then change your life insurance beneficiaries to say whatever your lawyer recommends to make that money go into that trust (i.e., "my estate," "in trust for ____," etc.). That way the life insurance is managed as you want it to be under your will.

On the charity front, we are keeping all the insurance money in trust until both kids are through college. If there's plenty of money there, our guardian is free to make charitable contributions, but I'm not going to compel her to do so before college is taken care of -- she has already committed to a huge emotional and psychological burden by taking on two kids, so my first responsibility is to mitigate the financial burden to the extent I can. After college, if there's money left, a good chunk goes to charity.

Posted by: Laura | November 6, 2006 12:14 PM

Not just a will but power of attorney and an advance directive are important. I know Congress will not reconvene to decide my fate- however, I do want my wishes known and followed. Also once you have these documents, make sure the right people have copies. Our attorney said problems often arise because no one knows where these documents are.

Posted by: Mom of two | November 6, 2006 12:35 PM

I have young children to provide for. As long as that is true, not a single penny of my estate will go to charity. Charity begins at home."

Whoa! If you can't carve a couple of bucks out of your estate for charity/causes you are one cold-blooded individual.

It's none of your business what they do with their money.

Posted by: to elaine | November 6, 2006 12:38 PM

I have a relative whose will was contested after he died. A total mess, expensive, embittering, all over a few ambiguous words. Sometimes, even when you try to do everything right, our legal system just doesn't work.

Also know a family that spent years and ended up running up hundreds of thousands in legal bills trying to get custody of the wife's sister's children after the sister died without a will. They felt it was worth anything, including a second mortgage on their house, to try to gain custody of their nieces and nephews.

Children's well being doesn't have a price tag, especially following the loss of a parent or parents. I think a few hours with Quicken or several hundred dollars with a lawyer is an important part of being a good parent to your children.

I also know a family from our time living in Minnesota where the parents died and the next door neighbors stepped in and raised the kids, who were teenagers. The kids got to stay in the same neighborhood, continue at the same schools, have some degree of stability following the tragedy. I don't even think a will was involved. It was just the right thing to do -- and it was clear to everyone.

So I guess there are several good solutions. And let's hope these kinds of tragedies are very, very rare.

Posted by: Leslie | November 6, 2006 12:42 PM

I'm an estate planning attorney and wanted to add some suggestions. I apologize if others have already offered these ideas but I'm reading fast & running against a deadline already today.

Parents who want to use an attorney for this: ask your friends and other parents for estate planning lawyers they would recommend. This is a good way to find a reasonably-priced and experienced attorney in your area who can help.

Also - as mentioned in other posts - the law in every state differs on what constitutes a valid Will (among other things). My state does not require notarization of a Will. My state also allows a fully holographic (handwritten) Will to be valid without any witnesses at all. So for you do-it-yourselfers, make sure your Will is executed validly in accordance with your state's laws. Copying someone else's Will from another state may cause problems.

Using a revocable ("living") trust for your estate plan, instead of a Will, can avoid probate if done properly and if all your significant assets are transferred to the trust before death.

Also for anyone with a sizeable estate you might want to use an attorney for your estate plan, making sure the attorney is experience in federal estate tax law. Right now if the value of all your assets (and this includes 401ks, IRAs, life insurance you own, joint accounts, assets you've inherited, etc) is over $2 million, it could be subject to federal estate tax on your death. Estate tax rates start at 46% on assets over $2 million. For married couples whose combined assets are worth $4 million or more, there are definitely some planning devices you can use to minimize the federal estate tax. These estate tax rules are subject to change, but it's difficult to predict how & when the changes will occur in this political climate. But that's the subject for another entry.

Enough for now.

Posted by: My 2 cents | November 6, 2006 12:44 PM

Both my daughter Muffy and my son Pennington have children in high school.
Any thoughts on how to split my estate?

Posted by: Ruth | November 6, 2006 12:47 PM

your sarcasm aside, designating guardians for your kids, and making your wishes knowing by means of a living Will are issues relevant to parents of all incomes and situations. estate issues are not relevant to me or most of the people on this board. Got something to say that's on point?

Posted by: to Ruth | November 6, 2006 12:50 PM

I'm sure this varies from state to state, as well as from court to court within a state (depending on how crowded their dockets are), but where I live (Tidewater, Virginia), we are told that if guardianship proceedings need to be instituted, then a reasonable expectation is that it will take at least 6 weeks and cost at least $1500.

Because the kids are minors, they will need to have a GAL (guardian at litem) appointed, which will be paid for from the estate. If there is only one child, than one GAL suffices, but if there are several children, one GAL might suffice or each child might need his/her own GAL.

I realize the parents will be dead at this point, so they won't have to cough up the money from their current operating budget, but it's NOT cheaper (nor less stressful) than paying the money while one is alive to get some stuff written on paper in a legally-cognizable format.

Posted by: guardianship | November 6, 2006 12:54 PM

This discussion got me wondering if any of the legal aid or pro-bono organizations will deal with these types of issues. A quick search turned up Maryland Volunteer Lawyers Service, which says it will do wills, guardianship and power of atty's for low-income individuals. If any of you live in MD and qualify (or have friends who do) you might want to check it out:

http://www.mvlslaw.org/

Or look for a similar organization in your own state.

Posted by: Megan | November 6, 2006 1:05 PM

As a legal assistance attorney working for the Army I've reviewed dozens of wills prepared by soldiers and civilian co-workers using "do-it-yourself" software. I have yet to see one that has even come close to being adequate, let alone good. These wills leave out so many minor provisions that can nonetheless have a big impact on a grieving family. One easy example is a simultaneous death clause. If parents are involved in the same fatal car accident but one clings to life a few minutes longer than the other, the family might end up having to probate the wills of both parents in the absence of a clause which dictates what should happen if testators die very close together. Executing a will properly is also not as easy as having two witnesses sign the will. States also have different rules concerning the impact stray pen marks or "pen and ink" changes have on the validity of a will.

Parents who do have wills must review them regularly. My mother executed a will shortly after she married my stepfather in 1973. My siblings and I were all minors at the time, so she left everything to him with the expectation that he would provide for us. At the time she passed away my mother was just about to divorce my stepfather and my sisters and I were all adults. Unfortunately, because she did not change her will to account for our majority, my stepfather inherited everything under the 1973 will. He did let us keep our mother's heirloom china and other sentimental items, but he kept all of the money for himself. We learned the hard way that leaving behind an outdated will is sometimes worse than having no will at all.

Posted by: MP | November 6, 2006 1:05 PM

"We learned the hard way that leaving behind an outdated will is sometimes worse than having no will at all."

Wow, MP, really good point. Don't the requirements for voiding/destroying a will also vary by state? I guess that's a good thing to ask your lawyer when you have it drawn up - how to void it or change it when you need to.

Posted by: Megan | November 6, 2006 1:13 PM

This has been an enlightening discussion. My husband and I have talked about having a will drafted since our son was born two years ago, but never got around to it. This discussion has really opened my eyes as to how naive we've been. There are so many issues surrounding wills/trusts/guardianship/secondary guardianship etc. that I certainly did not think of. I just IM'd my husbnd to say we HAVE to talk about this tonite and make doing this a priority. I just want to say thanks to this thought provoking and thoughtful community for helping to navigate parenthood.

Posted by: Falls Church Mommy | November 6, 2006 1:18 PM

Actually, estate issues might be relevant to many people on this board. You don't know what others' situations are. I am an only child, have no children, and will have none. I have a large amount of assets and I'm currently thinking about how to divide up my estate. I don't want to die without a will because then the family members and friends I want to have my assets would not get them.

Posted by: SHG | November 6, 2006 1:20 PM

There isn't a thing wrong with calling around and getting a price on it ahead of time.

The first thing any financial planner will tell a couple with children is to have wills drawn up.

When we started out we had a will from a lawyer-in-a-box place. It probably wasn't perfect but it fufilled the requirements for caring for our children.

Now that we're older we've got one that's a trust and does different tax related things. It cost more, but we are worth more.

I think it's one of those things that it's important to do, and as you get older and worth more you can re-do. But do it!

Posted by: RoseG | November 6, 2006 1:27 PM

It's probably also not a bad idea to review your parents will situation with them. You can use making up your own as a reason to bring the topic up.

My father-in-law passed away leaving my husband and his mother on the trust. My mother-in-law proceeded to have a stroke and isn't able to manage her affairs.

My husband, who is an only child, ended up putting our oldest son and I on the trust. If, heaven forbid, something should happen to both of us there wouldn't have been anyone to manage his mother.

Posted by: RoseG | November 6, 2006 1:39 PM

I'll weigh back in for those who dismiss estate tax issues as irrelevant. It was only 5 years ago when the "exempt" amount for federal estate tax was $675,000, meaning that anything over that was subject to estate tax -- and the tax rates were even higher (topping out at 55%). I don't think anyone thinks the exemption will go back down that low, but with so much uncertainty about the future of the estate tax (or as Republicans call it, the "death tax"!), and with the growing federal deficit and need for revenue, keep an eye on how Congress "fixes" this tax.
And think about how it might affect your estate plan. Where I live, it's not uncommon for couples to start approaching a taxable net worth if you're lucky enough to have a lot of home equity, 401ks and life insurance, or maybe even some inherited property. Just remember there are devices to consider that can minimize the tax, for those of you for whom this may be an issue.

Posted by: My 2 cents | November 6, 2006 1:40 PM

i know that father of 4 frequently jokes about things & this may be one of them but please get a will. you would be amazed and sadden by what happens to families when parents die. even supposedly adult children can get ugly over the smallest of things; mom's teapot or dad's watch. little things can have the biggest emotional impact. i'm seeing that happen in my husband's family. families can get ugly over "things" because those "things" carry emotional weight. one kid gets mad because the other got something they wanted & gets nasty over something else just as insignificant.

if something happens to you and/or your wife don't put your children in the middle of something like that. it's bad enough when you're an adult imagine what it can do to a child.

Posted by: quark | November 6, 2006 2:19 PM

Even with a will, there can be messy court proceedings should another party contest it. Writing a will is not a silver bullet.

If the democrats can't tax all your money now, they will tax it when you die. Think you aren't rich? Well, if your combined net worth is over $675K, the government's going to get a large piece of it. Set up a trust, find other ways to protect this money for your kids. The major obstacle to increasing the death tax exemption is the democrats.

Posted by: 1 cent | November 6, 2006 2:21 PM

The major obstacle to increasing the death tax exemption may end up being the Republicans and the cost of this war. (Said with a wry smile.)

Posted by: My 2 cents | November 6, 2006 2:25 PM

you also need to get a power of attorney to appoint someone to make health and financial decisions if you can't. If you're not dead, but in a coma or other such horrible situation, your bills still need to be paid, taxes filed, etc. Someone has to be able to do that before you create such a financial mess, that there's no money to support your kids and you wish you hadn't recovered from your problem.

Posted by: sam2 | November 6, 2006 2:39 PM

I'm a real estate attorney by training and think that I could do my own will based on my trusts and estates course in law school and some legal research. But it even though it would be right and legally enforcable, I would always feel that I had short-changed my family out of the most current advice to save a few bucks and that it would be foolish to make such a choice given the stakes involved.

We paid the last plumber that came to our house more than $100 for an hour of work. Lawyers provide a service for which they largely get paid based on the value of their time. It would take a good lawyer a few hours to meet with you, draft a document, give it to you for comments and meet with you again. That time does and should cost money just like the plumber and the mechanic. It's just that somehow people view wills as "optional" but regularly pay money for other services necessary for life.


Posted by: RE Atty | November 6, 2006 2:41 PM

Through all of this, I keep remember a saying I once heard:

People don't plan to fail, they just fail to plan.

Posted by: Father of 2 | November 6, 2006 2:41 PM

The real obstacle is the overspending, and not even including the war. Without it, we would be fine as long as the feds only did what was in the constitution and therefore, legal.

Posted by: atlmom | November 6, 2006 2:48 PM

I have to agree with RE lawyer's comments. And I'll add my own: Many people often only consult lawyers when they're in trouble or when things go wrong. Spending a few hundred, or even a thousand dollars now drafting a will can go a long way to prevent spending several thousand dollars and many hours (not to mention hours of fighting between family members) later down the road.

Posted by: another lawyer | November 6, 2006 2:56 PM

In any event, my husband and I did not want any of our sisters (we each have two) to raise our kids- the idea is frightening! Maybe his youngest sister willone day be up to it, but who knows. So we asked my cousin, someone we could both agree on. It would not be ideal, since she lives in another state, but it is something we would want. She was a little hesitant only b/c she would have to deal with my sisters, but really, whether we named her or someone else, it wouldn't be them.

My husband and I are named in the will of a close family friend - for her, we were the best choice b/c of religious/family situations. We were honored and would do whatever we had to do- I couldn't even think of saying no to a thing like that.

Posted by: atlmom | November 6, 2006 2:58 PM

Even if one parent dies, it's good to have a will. My sister-in-law died suddenly without a will and left two kids, 2 and 6, and a good amount of life insurance, with no money problems. Her husband has decided he can't afford preschool for the younger child, now 3, and is spending the life insurance money to renovate an already huge house to accommodate his new wife and her daughter. Two Cinderella children, it seems. There's lot's of loving family around, on both sides, but we have no control or say over what happens to the children, because there was no trust or will to advise.

Posted by: Jersky | November 6, 2006 3:01 PM

I agree with those posted who noted that paying a lawyer is, really, paying a professional. Why piss and moan about paying a lawyer for what s/he is qualified to do - you are paying for the expertise. Lawyers tend to get a bad rap, and while there are sleazy lawyers, doG knows there are sleazeballs in every walk of life. If/when I have assets (and am not just a po' grad student anymore), a house and so on, I'm definitely hiring a lawyer to draft a will.

I also agree wrt everyone having a power of attorney. Even if you have no kids and no assets, someone is going to have to take charge of your affairs if you are incapacitated.

Finally, to those who have kids: Atlmom noted that she "wouldn't think" of refusing the responsibility of guardianship. Does this go for most family friends or relatives? How does one know that prospective guardians really *want* the kids and aren't just saying "yes" because they don't want to offend, or out of a sense of duty, etc.? I am surmising that it can be really, really hard in some cases to find a suitable guardian who really *wants* the job. Especially if there are difficult circumstances - special-needs kids, asking the guardian to fight for the kids against a relative or (God forbid) the child's other parent, etc.

I don't have kids but darn, this guardian part would be the hardest thing to figure out if I did! I'm an only child, my parents are older and in poor health, my cousin isn't suitable, my friends wouldn't want the responsibility...Those who have willing and able family members or friends are darn lucky.

Posted by: Flyonthewall | November 6, 2006 3:08 PM

Can anyone recommend a good reference or book for understanding more about life insurance and how much you need to buy? This is something my husband and I really haven't talked or done anything about and obviously we need to. I'd like to read up on it first before we meet with someone so I make sure I really understand it.

Posted by: Megan | November 6, 2006 3:13 PM

to Megan: michelle Singletary's Color of Money column has been addressing the topic of life insurance in the last week or so. As I recall, there were references to recommended books.

Posted by: NC lawyer | November 6, 2006 3:15 PM

Apologies if I've missed a comment to this effect...but I'm wondering about people's experiences with siblings (or whomever) feeling offended that they weren't chosen as the guardians. For example, the poster who chose their cousin instead of siblings...I can see that being a sore spot of discussion. (Obviously the welfare of the children is the most important and the feelings of the parents' siblings shouldn't trump a sound decision...but still, this has to be uncomfortable for some people)Thoughts?

Posted by: MplsNonMama | November 6, 2006 3:16 PM

Jersky

Is your BIL collecting Social Security survivors' benefits for the two children?

Posted by: Anonymous | November 6, 2006 3:18 PM

Another thought on the whole will/estate topic.

My grandmother passed away back in '02 and my mother and her sister were the only two children.

From my perspective everything went rather well, though before her death my GMa had my aunt as her trustee, and to help pay bills. I think that someone other than your child should be responsible for taking care of your bills, etc. if you are incapacitated. The opportunity for my aunt to skim money was there though I don't think it happened.

My aunt whom also lived 20 minutes from my GMa was left with a majority of clearing the house, taking care of the little day to day things my mother was unable to do.

I suggested my mother, compensate my aunt for her efforts since my mother was unable to be available at all times to wrap things up. I think she did and that may have improved their previously strained relationship.

I knew a great financial planner who helped my Mother set up a financial plan, and I told him, I don't care what you do, just make sure of two things.

1. she never lacks for money.
2. Make sure she plans to give whatever is left over to her grandchildren.

Oh, no there I go again on the self-sufficiency thing.

I plan for my kids to be able to support themselves in their early 20s, but will provide for them should I meet an untimely death. (Though some on this board might think it can come none too soon.)

As life changes, so will my estate planning etc.

May you all live long enough not to have to worry about Guardianship for your children.

Posted by: Mr. EstrogenCentral | November 6, 2006 3:28 PM

knew a great financial planner who helped my Mother set up a financial plan, and I told him, I don't care what you do, just make sure of two things.

1. she never lacks for money.
2. Make sure she plans to give whatever is left over to her grandchildren.

Oh, no there I go again on the self-sufficiency thing.

Posted by: Mr. EstrogenCentral | November 6, 2006 03:28 PM

???

Posted by: Anonymous | November 6, 2006 3:44 PM

Father of 4

What will happen to you if your wife outlives you?

Posted by: Anonymous | November 6, 2006 3:48 PM

I was hammered the other day by some for campaigning for self-sufficiency instead of government mandated pay for mothers who miss work for birth.

It's strange how everyone wants someone else to pay (financially) for their decisions.

Posted by: Mr. EstrogenCentral | November 6, 2006 3:50 PM

Correction

Father of 4

What will happen to you if you outlive your wife?

Posted by: Anonymous | November 6, 2006 3:52 PM

if Father of 4's wife outlives him, he's . . um. . dead. is the question, where's he going to spend eternity?

Posted by: to anon at 3:48 | November 6, 2006 3:52 PM

my brother & sil chose me as guardian of their 2 girls over her sibs. this may make you laugh but one of the biggest reasons was all her siblings smoke & i don't. they felt very strongly that they did not want their children raised with smokers. i guess that was the deciding factor since we all live in the area.

Posted by: quark | November 6, 2006 3:56 PM

It's strange how everyone wants someone else to pay (financially) for their decisions.

Posted by: Mr. EstrogenCentral | November 6, 2006 03:50 PM

So how does asking your mother's financial planner to leave her excess estate to your children promote self sufficiency? Why shouldn't she give it to charity and make your kids earn their own money? I don't mean that as snarky as it sounds, I just don't see the connection there since inheritance of wealth is basically good luck and has nothing to do with the beneficiary's decisions.

Posted by: 3:44 again | November 6, 2006 3:57 PM

[What will happen to you if you outlive your wife?]

I would promptly make out a will and die of a broken heart.

Posted by: Father of 4 | November 6, 2006 4:06 PM

Thanks, NC Lawyer, I'll look at that.

Posted by: Megan | November 6, 2006 4:16 PM

3:44 again.

I hope that my children will be self sufficient, and would hope they would be wise enough to take the money and put it into a Trust with their grandmother's name (my mom) be executors. Provide scholarships, grants, etc. and as executors pull off a small stipend. That way they get to honor their granmother's name and are meagerly compensated for their efforts.

Yes, my father is still living and okay since you've coaxed it out of me, I also asked my friend the financial planner to keep the control of the money strictly in my mother's name. I'll withhold comments on my father's fiduciary capabilities. Though you can pretty much figure it out.

So my mother the penny pincher she is, probably will not be left penniless in the near future, and I hope she isn't as I don't want to financially have to take care of my parents after they were given so much.

But leaving a legacy with a foundation, trust etc. in her name for my children and nieces and nephews to control would be a great thing.

Posted by: Mr. EstrogenCentral | November 6, 2006 4:24 PM

We have put off making a will because we are not sure who to name as guardians for our two young children. We originally thought that my sister and her husband would be the guardians and have actually spoken to them about this, but over the past few years it has become clear that their views on religion and parenting differ quite a bit from our own.

We have close friends whose parenting style and religious/political views are much more in line with ours, but are hesitant to "fire" our immediate relatives in favor of friends, so we are kind of stuck. Has anyone else faced this type of problem? If so how did you resolve it?

Posted by: Need advice on guardians | November 6, 2006 4:28 PM

We've been cowards and only told those involved (ie the prospective guardians). I had no desire to have that convo w sisters. In any event, now-altho not at the time the wills were written- my sisters and I don't speak.
My DHs sister asked us to be guardians even tho she is closer to other sister who has two kids. I doubt she has discussed with other sister. Too difficult.

Posted by: atlmom | November 6, 2006 4:41 PM

But leaving a legacy with a foundation, trust etc. in her name for my children and nieces and nephews to control would be a great thing.

Posted by: Mr. EstrogenCentral | November 6, 2006 04:24 PM

Yes it would. I just don't think it does anything to promote self-sufficiency, which you seemed to say it did. Wanting your kids to inherit is basically seeking a monetary benefit for them that they did not earn. Nothing wrong with that (it's a great thing if your mom can pass some money down), but it's not self-sufficiency any more than seeking government benefits is.

Posted by: 3:44 again | November 6, 2006 4:43 PM

Isn't it true that an off the shelf or software will is fine if no one contests it?

Posted by: RKMInnie | November 6, 2006 4:43 PM

i would see the posting by several lawyers to decide whether or not the software was fine. since i used a lawyer not software i don't know but does the software tell you "if you choose this phrase it means this and if you choose this other phrase it means that"? or does the software give you the ramafications of choosing to do certain things? i don't know. one good thing about the estate planning lawyer we used was that he was a "family" lawyer who knew my financial planner who knew the accountant for the trust fund my father set up. he knows the ins & outs of my family situation and why i want to set my money up the way i do. i didn't have to waste time explaining everything. he trusts my financial planner and they know each other.

Posted by: quark | November 6, 2006 4:53 PM

Any will can be contested, whether it be $40 Quicken or $4000 supremo package prepared by the best lawyers.

Posted by: To RKMInnie | November 6, 2006 4:54 PM

RKMInnie, I have a sense that all the more knowledgable lawyers may have signed off for the day, but my guess is that you may be right depending on how egregious the problem is. Every will has to be probated, regardless of whether it is contested, and I would think that if the will fails in some very basic manner (ie, not enough witnesses) it would be found unenforceable. If it's enforceable on its face, and nobody contests it, then you'd probably be ok. And as someone else noted, any will can be contested, even a proper one, it's a matter of whether your wishes will be upheld when it is.

To the person asking about guardianship, it is extremely difficult. We initially talked about appointing some close friends with a child the same age, but they now live far away. Our family and friends who are closer physically were very upset when we indicated that we were considering the far-away friends. Now we are unsure (hence we haven't done anything) - our far-away friends are probably the best match as parents, but now our son doesn't really know them anymore, and we're beginning to feel it's more important to choose someone here. It's hard. But if at all possible, I think it's best to have the conversations now, because otherwise your other family may challenge your appointment in court; it's possible that working through some of that now could avoid the court fights which would be much harder on your child (or maybe that's too idealistic...)

Posted by: Megan | November 6, 2006 4:55 PM

A lot of people refer to the fact that inheritance is not earned. It makes it sound as if the inheritors don't deserve what they inherit, as if it's free money that somehow they unfairly get. I don't agree. If I work hard and make a lot of money, I think it is only natural that my children and grandchildren should benefit from my efforts. They are a part of me. It is my right to keep my money in the family. By giving it to them, I am in a sense, keeping what is mine. Perhaps they did not earn it personally, but someone in their family earned it with the intention that they should receive it. For people who whine that people who inherit are unjustly enriched, stop bellyaching and go earn some money to leave to your children. Don't expect others to provide what you could or would not provide.

Posted by: sage | November 6, 2006 4:56 PM

quark makes a really good point too - the other possibility even with an unchallenged will is that the language may just not say, legally, what you think it says. So even if the will is enforced the probate court may interpret the words differently than you expect. Probably not likely with very basic stuff, but who knows.

Posted by: Megan | November 6, 2006 5:01 PM

"Finally, to those who have kids: Atlmom noted that she "wouldn't think" of refusing the responsibility of guardianship. Does this go for most family friends or relatives? How does one know that prospective guardians really *want* the kids and aren't just saying "yes" because they don't want to offend, or out of a sense of duty, etc.?"

I am scared that my dear friend will ask me to be the guardian of her handicapped child. She and her husband were older parents (he is 15 years older than her even) and this is their only child. Her siblings (and her husband's adult children) have their own problems and I'm probably the closest person to her.

Why don't I want to do it? For the same reason that she might ask me to. I grew up with a handicapped sibling 10 years younger than me who has since passed away. The truth is that I do not want to "raise" another handicapped child. In some ways it was much easier when my brother was growing up because there weren't so many options for therapies and special schools, etc. But I'm glad to be free of that now and don't want to deal with it again. If asked, I will say yes, and if the worst happens, I will commit fully to doing it, but I hope I don't ever need to.

Posted by: EC | November 6, 2006 5:02 PM

I agree! Those people are just jealous (as if they would turn it down in a similar circumstance!)

Posted by: to sage | November 6, 2006 5:04 PM

I highly recommend that people who need a will get a copy of willmaker because it is actually a pretty sophisticated and up to date program (here's a tip-- lawyers also use model documents when you pay them to draft a will). Willmaker will suggest when it thinks a situation is complex enough to require a lawyer. But even if you are certain you want to go to a lawyer, spending $40 on willmaker will let you read and understand many of the issues before you step in the door, making your time with the lawyer a much better (and perhaps cheaper) investment.

Last, I think that procrastination is the main reason people don't have wills, so if you are more likely to do one at home with willmaker, then you are better off. (Plus the estate tax will likely change significantly in the next 5 years, so why pay a lot for a will that may be out of date soon).

Posted by: Doh | November 6, 2006 5:08 PM

If I work hard and make a lot of money, I think it is only natural that my children and grandchildren should benefit from my efforts.
Perhaps they did not earn it personally, but someone in their family earned it with the intention that they should receive it.

Posted by: sage | November 6, 2006 04:56 PM

That's fine. But then don't pretend that those children are "self-sufficient;" they didn't earn the money through their own work. I have no problem with your kids inheriting, it just irritates me if you then get up on a high horse about them being self-sufficient. It's not unjust enrichment by any means, but neither is self-sufficiency. They are no better than anyone who receives money from another source.

Posted by: 3:44 again | November 6, 2006 5:08 PM

"If I work hard and make a lot of money, I think it is only natural that my children and grandchildren should benefit from my efforts."

Sage, I totally agree. I think many people who work hard and save money do so not to buy themselves a certain lifestyle but to provide "something more" for their children and grandchildren. Thanks to my parent and grandparents, all my college education was paid for without taking out any loans. Did I appreciate it? YES! My family has always taken the attitude that inherited money that we have is a "gift" from our ancestors to be used wisely rather than squandered.

Posted by: Anonymous | November 6, 2006 5:09 PM

Word of advice to anyone still reading this blog - ask your designated guardian if they are willing to take your child(ren). Nothing worse for a child who has lost both parents to not be wanted by their designated guardian (remember the premise of Baby Boom with Diane Keaton?)

Posted by: belgie girl | November 6, 2006 5:11 PM

They are no better than anyone who receives money from another source.

Posted by: 3:44 again | November 6, 2006 05:08 PM

This should have said, "They are no better OR WORSE than anyone who receives money from another source."

Posted by: 3:44 again | November 6, 2006 5:11 PM

I think today's blog was based on my question. Wow, thanks Leslie.

I think I keep balking at writing a will because it is so hard to choose a guardian. We are lucky that there are a few people who would take our kids (I assume, guess we ought to ask), but none are ideal, and my husband and I don't agree on who is best.

Basically, I prefer my family, and he prefers his. I know it's past 5 now on the east coast, but if anyone is still out there, how did you break a stalemate?

Love the tax discussion-- only in DC!

Posted by: YetAnotherSAHM... | November 6, 2006 5:12 PM

Under those circumstances, EC, maybe you should refuse if asked. If you feel that raising this child will be a burden and a nuisance, then it might be best for you and the child if you say no. You will resent the child and he or she will definitely feel it. Yes, we do a lot for our friends but I don't think reluctantly taking in a high-needs child should be one of them.

Perhaps I'm selfish, perhaps I'm not a true friend. But I know I could never take on raising a special-needs child, and I don't think it's really fair for friends to impose like that.

Again, this is the conundrum of seeking a guardian for one's child. If there are no obvious family members (and in this day and age of smaller families, it is more and more the case) then what? Is this something parents have a right to ask friends to take on? Can friends in all conscience refuse?

Posted by: Flyonthewall | November 6, 2006 5:14 PM

3:44, how are you so sure that those children who inherited are not "self-sufficient"? I have spent very little of my inheritance, preferring to save as much as possible for my own children and grandchildren. Thus, I am self-sufficient.

Posted by: Anonymous | November 6, 2006 5:15 PM

to YetAnotherSAHM: Someone had to compromise and it was me, in this instance. This disagreement is about as fundamental as it gets, but divorce won't solve it -- you'll still have to agree on a plan. I decided that of the two best choices, the kids would be loved and well-cared for, and so holding up the planning one more minute made no sense. You have to tell yourself it's a win-win for the kids if you get off the dime and finalize a plan.

Posted by: NC lawyer | November 6, 2006 5:16 PM

Anon at 5:15, most people who get an extra dime can only think of spending it. That's why most inheritances don't last more than one generation.

Posted by: Angie | November 6, 2006 5:17 PM

To Need advice -

We're expecting our first, and we will be asking our best friends to be her guardian over my brother and his wife, and my husband's sister, who is single. We are the godparents/guardians for our friends' kids, and we trust them (just as they trust us) to raise our kids with the same values that we would raise them with.

I highly doubt my brother will be offended by us not asking them - they didn't ask us to be guardians of their kids. My parents, on the other hand, don't understand why we'd want non-family members raising our kids, and are definitely a bit offended that we're not naming them guardians (although we might name them trustees of the $).

To Father of 4 and others who don't have a will - please, please, please get one. No matter how close you think your family is, when it comes down to inheritance and money issues, a family can break down and be torn apart. We didn't speak to most of my mother's family after my grandma died without a will because of all the in-fighting over who should get what (and she didn't exactly have a big estate). Some of my mom's relatives even prevented my mom from talking to her grandma (my great-grandma, who's, bless her, is still with us at 103). Although I'd recommend shelling out the money for an attorney, even a do-it-yourself will is better than nothing.

Posted by: Seattle lawyer | November 6, 2006 5:20 PM

I have spent very little of my inheritance, preferring to save as much as possible for my own children and grandchildren. Thus, I am self-sufficient.

Posted by: | November 6, 2006 05:15 PM

5:15, I think that's great. But you still have the benefit of having a safety net in case you need it. If you come upon hard times, you can use the money that you inherited to cover you. If someone who does not inherit, but who otherwise has made the same choices as you, hits the same hard times, they may need to look elsewhere for assistance. My point is that the fact that you can use your inheritance where someone else may not does not make one of you better than the other - you are both still using money that you didn't work for; whether it comes from family or somewhere else is immaterial. And since all of us face the prospect of needing assistance at some point, perhaps we should not be so judgmental of people who need it now, wherever it comes from.

Posted by: 3:44 | November 6, 2006 5:25 PM

To MlpsNonMom

My sister and my SIL were mildly ticked that we didn't pick them and chose a familiy friend who is not related. He may as well be, given how many years and how close a friend he is. Anyway, my SIL just gets ticked off no matter what you do. My one sister is completely oblivious so she didn't really care. My second sister was a bit hurt but she understood our reasons. Frankly, we may revisit the issue, depending on what life has in store for our family and friends. For now, however, none of our siblings are in a place or relationship that we would want our children living in.

Posted by: LM in WI | November 6, 2006 5:29 PM

Another thing about inheritances that has not been pointed out so far: It might help a (grown) child take on a low-paying but valuable career, if they had the inheritance as safety net, down payment on a house, what have you.

For instance, I know a woman - very bright, college-educated, originally a PR person - who changed careers to be a preschool teacher. Valuable? Yes. Poorly paid? You betcha. Thanks to her inheritance, she was able to buy a condo instead of being a lifelong renter.

In this sense, inheritances can give back indirectly. If Johnny or Janie can be social workers or schoolteachers or district attorneys thanks to an inheritance, then that is a good thing IMO.

No, you cannot guarantee that Johnny or Janie will be so altruistic. Again, that is where trusts might come in. Holding assets in trust, even after a child's majority, but allowing it for specific purposes like buying a house, or going to college or grad school, etc., could work.

Posted by: Flyonthewall | November 6, 2006 5:34 PM

To MlpsNonMom,

I think it depends on your family, but in our non-litigious, low drama family, we decided not to discuss guardianship with anyone but the actual guardians. Realistically, it's pretty unlikely that the guardian clause of our will would be put into force, so we have chosen to avoid hurt feelings.

If we were planning to list non-relatives, I think we'd need to at least have a letter for our family with the will explaining why we made the choice.

Posted by: YetAnotherSAHM... | November 6, 2006 6:17 PM

Megan said, 'Every will has to be probated'. I'm not a lawyer, but this is not true if there is no estate. When my mother died, she lived in senior rental housing, owned no property, had a checking account, savings account, CD, and life insurance. The accounts/insurance all were jointly titled or had named beneficiaries.

She did have a will, and her lawyer said that probate was not necessary because there was no 'estate' due to the way her assets were titled.

Another thing that she put into her will that hasn't yet been mentioned, unless I missed it, was her wishes regarding funeral arrangements. You can specify where, how many viewings, cremation, burial, type of religious service, etc.

Posted by: xyz | November 6, 2006 6:27 PM

xyz, that's a good point - you can avoid probate on a lot of things if you title them properly. Had your mother not made her checking and savings account joint, I'm pretty sure they'd have to be probated (but my understanding of all this is very cursory). But again, there are different ways of holding property jointly, and only some will avoid probate, so you want to make sure you do that right if you're counting on avoiding probate.

Posted by: Megan | November 6, 2006 6:33 PM

Quick thoughts: it's true that if all your assets are owned in a living trust, or in joint tenancy, or pass by beneficiary designation (e.g., life insurance, 401ks, IRAs, where your beneficiary is NOT your estate) then there may be no assets to probate. In this situation a Will would not have anything to operate over, asset-wise. But the Will would still be the document that names the guardians of your minor children.

A Will can contain directions for funeral arrangements, but estate planners usually suggest putting these directions in another document, or telling family members what you want. This goes for organ donation too. This is because sometimes the Will isn't looked-for or located until well after the funeral occurs.

Posted by: My 2 cents | November 6, 2006 6:56 PM

Someone please explain to me why parents would not have a will and designate a guardian for minor children?

Many parents spend thousands of dollars in private school tuition, vacations, toys and other luxuries for their children, but they fail to select a guardian in case they are not here to care for them.

I am childless, so please help me to understand why many parents do not have wills.

Posted by: Aquanetta | November 6, 2006 8:12 PM

Aquanetta,

I can only speak for myself. The main reason that my husband and I do not have wills is because choosing a guardian for the children is hard and we couldn't decide on who the guardian(s) should be.

Our fathers - both dead, our mothers - age and health issues. Single siblings - maybe a good choice, but parenting is hard, single-parenting even harder and we felt it was too much to ask.

Married siblings - had kids first at a young age, kids now grown and our siblings expressed many times how nice it was to have child-rearing in the rear view mirror so they can do all the things they have been delaying 'until the children are grown'.

Married siblings without kids - have careers with irregular hours (nurse, policeman). Wonderful people who would be great parents, but we don't really see them giving up their careers. Our kids would have to live on a new schedule and give up most extracurricular activities as well as change schools, neighborhoods. Even though many parents juggle schedules, we didn't really see these people going to the same level we would to keep our kids activities available.

Our friends who would be suitable have the same issues as our families (grown kids, etc).

Also, everyone has a different philosophy regarding raising children. For some, it's religious involvement, for others it's parenting style (eat everything on your plate vs eat only what you like).

If you have been reading this blog for any time, you have seen how parents obsess over the care of their children. SAH vs WOH, home day-care vs day-care center, day-care provided by family members only. Is it really any wonder that parents overthink the guardianship to the point of not making a choice?

Also, even though we know the value of making this decision, we also believe that it is highly unlikely that we will both die at the same time. In the event that one of us were to die, the other would really have to make a decision. We have discussed this. We believe that as time goes on, our choice of guardian may change anyway due to the needs of our children changing.

We have procrastinated so long that our children are now 18 and 14. The 18-year-old is legally an adult, and Leslie indicated that the 14-year-old pick their own guardian.

We may now name our 18-year-old as the guardian of the 14-year-old. We will have a big discussion with both to see what they would want and consider the wishes of both. I realize that this may put a huge burden on the older child, but I also know that the rest of the family will pull together to help with our younger child.

WE actually don't know anyone who lost both parents before reaching legal adulthood.

Posted by: me | November 6, 2006 9:15 PM

Aquanetta--if you read through these postings, especially the recent ones, you will see why so many parents (myself included) have not yet selected guardians or completed a will. In our case we are debating between family (my sister and her husband) or close friends. Our close friends share our values/parenting style much more so than my sister and BIL, but selecting someone outside the family is likely to lead to a lot of hurt feelings, not just my sister but also my parents. Given that it is pretty unlikely that both my husband and I will die at the same time, we have put off making a decision that we are either 1) not totally happy with or 2) that leads to a lot of hurt in my family.

Posted by: Need advice on guardians | November 6, 2006 9:29 PM

I was hammered the other day by some for campaigning for self-sufficiency instead of government mandated pay for mothers who miss work for birth.

No. You got hammered principally because of your self-righteous tone and bad attitude!

Posted by: to Mr. EstrogenCentral | November 6, 2006 11:09 PM

My ex-husband died last month without a will and now we have to go through the courts to even recover any of our kids' stuff from his girlfriend's house. Incredible to believe that anyone would deny these kids what they're entitled to but apparently there are some who don't have a moral compass. Wills are very important, especially now that the divorce rate is high, and can take away from any squabbling and put the power in your hands, not the courts. I know that, legally speaking, we will get to recover all that is rightfully the children's it would have been much easier to do so if the proper paperwork was in place.

Posted by: SBM, Carrollton,TX | November 8, 2006 3:12 PM

At the advice of one poster, I called my EAP for services. They are sending me a "Will Packet" via email today and are scheduling a free consult with an attorney in my state to be certain that state requirements are met.

I am travelling to Europe in 5 days and hope to have a Will in place by then, thanks to the discussions on this board.

Posted by: Stacy | November 9, 2006 2:16 PM

Leslie on Nov14:
"I think you can have it all. I feel like I do. I'm grateful for how hard I've worked to make decisions that work for me and my family now."

There! Leslie has it all.
No burnout, no balance problems, no childcare worries. She has career, family, $$$, husband, power, influence, etc. Everything you could ever want.

Posted by: QUOTE | November 20, 2006 2:06 PM

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