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It might surprise you how many responsible parents don’t have a will. It’s not that we don’t know we need one—our busy lives just get in the way of preparing for the worst. Like many of you, we’ve been playing the odds that nothing will happen. But it’s a terrible bet if you want a say in how your children will be raised if the worst happens. And who doesn’t want that?
A will ensures that kids are financially and emotionally supported in their parents’ absence, primarily through custody. “The single most important reason that parents with minor children need a will is that the will appoints a guardian,” says Sarah Waldeck, an attorney and professor of property, estates and trusts at Seton Hall Law in Newark.
Whether blessed with too many adoring options (see: Battle of the Grandmas) or facing a dearth of prospects, choosing a guardian is a tough decision, one that often puts the will-making process on pause. Get over it.
CHOOSING A GUARDIAN
“‘Oh we can’t agree, so let’s not do it,’ isn’t an excuse to not create a will,” says Jeralyn Lawrence, an attorney specializing in matrimonial and family law. We get it—who could possibly replace us? Well, a judge, for one. That’s right: If you don’t create a will and name a guardian and both parents meet some misfortune (custody is typically awarded to any surviving parent), a random court appointee will make that choice for you. And while said appointee works out custody, your kids could potentially be sent to foster care while a decision is being made.
Will this happen? Probably not, but you can guarantee it doesn’t by naming someone, even an imperfect someone, as guardian. “No one is going to be ideal, [but] it’s better to empower somebody to be your voice and take your kids’ best interests into consideration. They have to be better than a stranger,” says Lawrence, an officer of the New Jersey State Bar Association and former chair of its
family law section. “The most important thing is that they have someone who will love them, care for them and provide for them.” Even if the person is ultimately unable to care for your kids (like an aging grandparent), at least they’re empowered to appoint someone else.
Of course, you should get the go-ahead from your would-be guardian(s) before creating your will—guardianship isn’t the sort of thing you want to spring on people. Not sure what to say? Keep it simple by stating that you’re trying to get things in order to protect your kids, and you’d like to appoint them as guardians in the totally unlikely event that something happens. “Most people are flattered, and figure it’ll never happen,” says Lawrence. But since things do happen, assure them they won’t be on the hook financially as both the courts and executors have a responsibility to spend estate funds to provide for the children. All your kids need is love.
SECURING YOUR KIDS’ FUTURES
Well, that and the financial resources to support them into adulthood. It’s common for parents to name their children as beneficiaries of their estate, and that’s that. That’s a bad idea. Naming an executor to oversee your estate is almost as important as naming a guardian, since they’ll be responsible for putting your affairs in order by dealing with outstanding debts, distributing specific items (say your grandmother’s ring to a favorite niece) and, most importantly, making sure your children are taken care of properly and according to your wishes. And if you don’t name an executor? Minors can’t legally own property, so the courts will appoint a surrogate to manage your estate.
“Now you have a stranger trying to implement your intentions,” says Lawrence. This person doesn’t have to be the same as the guardian of your child— just someone empowered to implement all your wishes and put your affairs in order. “Without that appointment, nobody has any power,” she says, adding that it’s an administrative headache for everyone, especially your chosen guardian who'll need to petition the court for financial support. You could name the guardian as custodian of the estate, which is somewhat less of a hassle. “It’s preferable in almost all instances because the custodian has the ability to spend the money on whatever qualifies as support of the children,” says Waldeck. If you’re thoughtful about the process, be sure to take the next step. “You want to make the life of the guardian as easy as possible, and the best way to accomplish this is to set up a trust,” Waldeck says. A trust allows a chosen trustee to execute exactly how you want your estate to be allocated— think of it as helicopter parenting from heaven.
Without a trust, children collect their inheritance upon turning 18, and teens aren’t exactly known for their sage financial judgment (goodbye college, hello Ibiza). With a trust, funds will be disbursed according to your wishes, from prioritizing education to helping buy a first home. “By setting up a trust, you can instruct the trustee to manage the property for the benefit of the children,” says Waldeck.
Believe it or not, your own properly worded, dated, signed and witnessed will is valid (rules vary by state), though it’s not exactly recommended, especially when it’s a snap to craft one online for less than $100 (Rocket Lawyer and Legal Zoom both come highly recommended). Many experts feel it’s worth the fee ($1,000 and up) to have a lawyer draw the will up for you. “Spending $1,000 to make sure your children are being provided for the way you want them to be is money really well spent. What parent isn’t going to say yes to that?” asks Waldeck.
Parents on a limited budget for starters. A thrifty (and recommended) option is to have your DIY will reviewed in person by an attorney. Yes, it'll cost a bit extra, but far less than having your documents drawn up from scratch.
Still, it’s not typically the financial aspect that keeps the will-adverse from doing what needs to be done—it’s the emotional. “It’s such a daunting thought to think you might not be around. But you’re absolutely going to die. The only question is when,” says Waldeck. “So make a will.”
Jennifer Kantor lives in Maplewood with her husband and two kids. She swears that by the time you read this, she’ll have created a will.