Preparing Your Will As a Parent: Tips & Advice to Help Make a Hard Process Easier

Yesterday, I talked about the importance of having a will as a parent. If you missed that post, you can READ IT HERE. Today I want to talk a little bit about preparing your will and offer some tips and advice that I learned while working with our family attorney to prepare mine and Michael’s wills. 

First and foremost – and I can’t stress this enough – I highly, highly urge you to use a bar certified attorney who specializes in wills. There are many reasons you want to go this route but the most important one is because your attorney will have in-depth knowledge of the laws and regulations for the area and state in which you live. Yes, you can write your own will (known as a holographic will) as long as they comply with state laws concerning holographic wills however again, as a normal citizen, you risk not knowing all the laws for your state which could negatively affect how things are handled with your child[ren} and assets. Furthermore, some states do not even recognize these types of wills as legal. Other risks you take in writing your own will include:

·         Ambiguities and Errors. This is the most common problem with holographic wills. The intended meaning may have been clear to the deceased when they wrote it, but those who are reading the will can be left with great confusion over the testator’s true intentions resulting in conflict and possible lawsuits.

·         Failure to Dispose of the Entire Estate. Typically, holographic wills are written to that specific individuals are to receive certain assets. This is fine, so long as the will addresses everything it should. Problems arise when the will disposes of less than all of the estate. If the will gives away the deceased’s car, home and bank accounts but fails to mention other items like personal property and the 60 shares of Disney stock, there is confusion and possible debate regarding the items not mentioned in the will. Unfortunately, such assets then pass to surviving legal heirs as determined by the state statutes, the result of which may not be what the deceased intended.

·         Failure to Name Beneficiaries. The persons you name in your will to receive your assets are called "beneficiaries." A common error in holographic wills is that the deceased fails to anticipate the possibility that a named beneficiary might die before they do. If the deceased does not name a contingent or alternate beneficiary and the named beneficiary predeceases the testator, the gift to the named beneficiary will "lapse," meaning it will pass according to the laws of intestate succession (unless there is a residuary clause in the will).

·         Failure to Name an Executor. Usually, those who write their own holographic wills focus mainly on who will get what they own when they die, but they neglect to nominate an executor who will see to it that their wishes are properly carried out.

And most importantly for parents…

·         Failure to Name Guardians. For deceased with minor children, their wills should include the carefully considered nomination of guardians for the children in the event both parents are deceased before the children reach adulthood. This can be critically important, yet it is often overlooked in holographic wills. If the parent fails to name a guardian, the court must select and appoint someone. Often the judge will name the closest living relative, who may be the last person you would have wanted to get custody of your children.

Bottom line, yes – hiring an attorney can be expensive but when you’re dealing with something as complicated and precise as a will – especially with children involved – it is worth every penny to make sure your will is done properly according to the laws of your state. 

So now that you’ve found an attorney you’re comfortable with, what’s next?

Your attorney will want to have a consultation appointment with you. This is their opportunity to find out everything possible about you and your spouse. It is extremely, extremely important that you be honest and upfront with your attorney about everything: finances, assets, potential family issues – everything. In order for your attorney to put together the best will possible to protect you and your family, it is essential that you trust your attorney and be honest with them about the state of your family otherwise, you are defeating the purpose altogether. 

Before your meeting with the attorney, sit down with your spouse to discuss and list all your assets, questions and potential issues you feel may arise after your death and ones especially that could affect your child{ren}. During your consultation, be prepared to discuss:

·         Assets. You should have a list of all assets and already know who is to receive each intended item whether it is money, stocks, personal property or other items. Many times, insurance policies and retirement accounts already have a beneficiary named so you will not need to list those in your will.

·         Burial. How do you want your remains to be handled? Do you want to donate your organs? How do you want your funeral to happen? All of these questions need to be carefully thought out and considered ahead of time.

·         Guardians, Beneficiaries, Trustees and the Executor. Guardians are family or close family friends who you trust to basically “adopt” your children should you die. When you and your spouse agree on those people, you should talk to the chosen before you meet with your attorney to confirm they are willing to take on the legal responsibility of raising your children. Many times, people do not consult with the guardians listed in the will and this can cause problems. I also recommend having back up guardians named in your will in case the primary guardians become deceased. For instance, we have my parents listed as the main guardians for Maddy but should something happen to them, our back up guardian is my sister Ashley. 

Aside from the beneficiaries, the appointment of the executor and trustee of your will is probably the most important person you will name in this process. He or she will be the person you trust the most to handle the execution of the will to the full exact detail and law, no matter how large or small your estate is. Again, choose a person you trust and always talk with them ahead of time to make sure they are aware of your wishes and are willing to comply.
 

·         Additional Tips. When you meet with your attorney to have your will signed and notarized, make sure to read through it thoroughly. Take your time! I can’t stress this enough. When we went to sign our wills, we found a few mistakes that had to be corrected so TAKE YOUR TIME AND READ EVERY PARAGRAPH BEFORE SIGNING.

Make sure all the details accurate and if need be, ask for clarification on any issues or points of concern. Don’t ever feel as if you are being picky or asking too many questions. That is why you are paying an attorney! Once your will has been properly signed and notarized, make sure your executor, trustees and beneficiaries have copies. Purchasing a fire proof safe is a good way to store these, and other, important documents in your home. You will also want to keep in mind that if your assets and personal property change, you will need to update your will accordingly.

As I said yesterday, I know talking about matters such as this isn’t easy nor is it a happy thing to think about but it’s the reality of life and we never know what life will give us on a daily basis. We owe it to our children and families to be prepared. Talk with them, let them know what your wishes are so that everyone is on the same page and clearly understands your will. 

I hope this information has been beneficial to you and I hope you have an understanding of just how important having a will is for you but more importantly, your spouse and children. If you can, I urge each of you to make this a priority to be done in 2015 if you haven’t already.

Over the next week, I’ll be talking about the importance of having your healthcare directive done as well so keep an eye out for that. I hope this information is beneficial in helping you get organized and prepared for 2015 and beyond. 

Disclaimer:

No information on this blog shall be construed as legal counsel. Please contact an attorney to discuss your specific needs for a will in correspondence with your local and state laws.