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Note from Kresha: Since one of the central themes here at Nourishing Joy is thoughtful, intentional parenting, I have been wanting to write about the importance of writing a will for some time. However, I am so embarrassingly ignorant about this important legal issue that I've hesitated to do so.
Thankfully, a thoughtful, experienced lawyer came to my rescue. 🙂 Today I welcome Scott D. Goldman, Esq., an expert attorney who specializes in divorce and family law and is the founder of Goldman Family Law in Denver, Colorado. Thank you, Mr. Goldman, for sharing your expertise on this important topic.
If you are an expecting parent or a parent to any of the 73.6 million children in the U.S. and don’t have a will yet, it is imperative that you make one as soon as possible. Writing a will is the single most important thing you can do to ensure your children are provided and cared for if something happens to you.
Like many parents, especially those with young children, you may be under the impression that wills are for older individuals since you may feel that you have little to leave your children at this time in life. Perhaps your house isn’t paid off, or you don’t have much money or property to pass along. Maybe you haven’t prioritized creating a will thinking it is unnecessary to prepare for a worst-case scenario. After all, no parent plans to die before their kids, right?
Why do I need a will?
As parents, it is our responsibility to ensure that our children are looked after—even after we have passed away. Writing a will is not so much about leaving behind assets for your children as it is about naming a suitable guardian for them. Naming a guardian for your children is crucial to guaranteeing that your children are going to be fostered by the people you would want to raise them.
If you die without a will, you will have absolutely no control over who cares for your children, as well as how much money is to be allotted for their support. These decisions will be made by your state’s courts, along with government social services. The court could possibly appoint the absolute last person you would ever have chosen to care for your kids!
A will is also necessary even if your spouse survives to take care of your kids. Without a valid will, the courts will use a fixed formula to determine how to divide your assets. This means that your spouse may not have full control over the money you’d like to be apportioned to your family. In most states, your spouse will receive anywhere from one-third to one-half of your estate, with the remaining amount allocated for your children.
Though the court’s preset division of your assets may seem like an acceptable arrangement, know that in some states, the administrator appointed by the state is authorized to control your assets until your children turn 18 years old. This means that your spouse may need to undergo complicated and lengthy legal procedures to access your money to help raise your children. If the courts do eventually permit your spouse to handle the funds allocated to your children, he or she will still be required to submit to the court an accounting of how the money is used every year.
If prepared properly, a will allows your estate to be distributed lawfully and efficiently, thus costing your children and other loved ones the least amount of money and headaches possible.
What do I need to do first?
In order to write a will, you will first need to do the following:
- Name a guardian. It’s hard to imagine any other person parenting your children, but it is necessary for your children’s future well-being. Think of the best person to take care of your children until they become adults—whether a trusted relative or a friend. Take into consideration the person’s values, parenting beliefs, and how much he or she loves your children. Also name a legal adult who has the energy, time, and willingness to raise your kids. Be sure to ask the guardian first before putting his or her name down in your will! To be safe, name an alternate guardian in case your first choice is not able to take on the role.Note that if two parents are unmarried or divorced, the children typically are made to stay with the surviving biological parent. If you object to this, you must put this in writing.
- Decide on how to distribute your assets. Determine what to do with any assets that do not automatically transfer to a beneficiary. These include your properties, investments, and bank accounts.Remember that since younger children are unable to manage money on their own, you may not want to give them full access to it until they grow up to be more responsible adults. In the meantime, you may want to first entrust your estate to your kids’ guardian or any another individual, or to a financial institution such as a bank.
- Name an executor. An executor is an individual named in your will who handles the wrapping up of your financial affairs after you’re gone, such as retitling property according to your will, and paying your debts and taxes.Be sure to choose an executor who is willing and capable of taking on such a large responsibility. Depending on your preferences, the guardian and executor may or may not be the same person. As with the guardian, let the person know ahead of time that he or she has been chosen to be your executor. If you die without a will, the court will appoint an executor for your estate.
How do I start writing my will?
Once you’ve made the big decisions, you’re ready to write your will. Some options for preparing a valid will are using legal software programs or seeking help from an attorney.
- Use legal software programs or online resources. There are several affordable online resources and software that can help you prepare a will. These products will draw out how you intend your property to be distributed, as well as ask you to name the executor of your estate. Though this is a more affordable option, it is also a riskier one. Preparing a will this way is suitable if your affairs are extremely simple.
- Hire an attorney. A knowledgeable estate planning or family law attorney can help you create a will that conforms to the laws of your state. Hiring an attorney may be especially beneficial if you have a business or more complex estate. Though this approach may be on the expensive side, you can have peace of mind knowing that your will is watertight and does exactly what you want it to.If you want to save on legal fees, you may also opt to use a software program or the legal resources available online, then later ask an attorney to review the will that you’ve created.
Once you’ve finished, be sure to let a few trusted loved ones—and your executor—know that you have prepared a will, as well as where they can locate it if needed.
It is important that all individuals prepare a valid will—but it is even more critical for parents with children. A little planning now can go a long way towards having comfort in knowing that your family will be taken care of in the future.