Editors Note: Nothing in this article is meant to be considered legal advice nor does it include legal representation. As with all legal issues you should always consult your attorney and estate planning professional.
What is a Will, And What Can It Do For Me?
A will is a document that specifies who will inherit your bank accounts, real estate, jewelry, cars, and other property after you die. You can leave everything to one person or divvy it up in small, specific portions, such as your baseball card collection to your brother or your ’65 GTO to your best friend. But a will is much more than a means of distributing your property when you’re gone — especially if you have kids.
For parents, making a will is the single most important thing you can do to make sure your child is cared for by the people you would choose if anything should happen to you. In your will you can designate a person (guardian) to care for your children if you die before they become legal adults. And you can designate a property guardian or trustee to manage your money for your children until they reach adulthood. You can appoint one person to act as both personal and property guardian, or choose two people to carry out the separate roles.
If you’d like to help streamline the wrap-up of your affairs after you’re gone, you can name an “executor.” An executor pays your debts and taxes and then makes sure the rest of your estate goes to the people you’ve chosen.
There are many other things you can use a will for, including these: To make charitable contributions; to donate organs; to specify funeral arrangements; and to state your preferences about life support by creating a living will, healthcare directive, or directive to physicians as a separate document.
One caution: Certain assets such as life insurance policies, 401(k)s, and IRA accounts have beneficiary forms that trump wills. That means the funds in these accounts are distributed to whomever you named as beneficiaries, no matter what you specify in your will. Be sure to check the beneficiaries on these accounts — and make any changes — to align with your will.
What Happens if I Die Without a Will?
Without a will, there’s no guarantee that when you die your money will go to the people you want or that your children will be cared for by the person you believe will do the best job.
This may come as a shock, but if you die without a valid will, state laws require that your property be divided according to a fairly inflexible formula. In most states your spouse, if you have one, would receive only about one-third to one-half of your estate. The rest would be earmarked for your children.
Sounds fine, but without a will, in some states a state-appointed administrator (who charges fees for the service) would control your children’s money until each child turned 18. That means your spouse wouldn’t be able to access the money to help raise your children without going through a very complicated legal procedure. And even if the courts decided that your spouse could hold the funds earmarked for your children in trust, he or she would have to supply the court with an accounting of how the money is used each year.
Moreover, if you and your partner both died without a will, the state courts and social services department would appoint someone to raise your children. And that person might have very different ideas about parenting than you do. Even if you think you have almost no property to leave your children, it’s worth making a will to make sure you get to choose their guardian.
Do I Need a Lawyer to Make a Will?
Technically no, you don’t. However, do you need a doctor to perform an appendectomy? Technically no. Although I assume you would prefer to live through the operation.
Many people believe if they draft a will by hand that this is sufficient to pass their items and money to family members. Most states will not recognize this kind of document and your family will be back to square one.
You can have Legal Zoom draft a will for you and they do a decent job at a reasonable price. Just keep in mind you get what you pay for. This is one of the most important steps you can take as a parent (and as a decent human) so spend the money to have it done correctly. If all you are doing is the Will and Living Will most attorneys do that relatively cheaply, especially since we have been losing money hand over fist to websites like Legal Zoom. Pay to have it done correctly. It is too important to be cheap about it.
What Makes a Will a Legal Document?
There are several requirements for making your will a legal document.
- It usually must be typed or computer generated. Handwritten wills are legal in some states.
- You must state somewhere in the document that it is your will.
- You must date and sign your will.
- You must sign your will in the presence of at least two witnesses (three in some states, such as Vermont) and your witnesses must also sign.
A legal will doesn’t have to be notarized (except in Louisiana), nor does it have to be recorded or registered with any government agency. After your will has been signed, put it in a safe and fairly obvious place, like a locked metal file cabinet, and tell your spouse, partner, or executor where it is.
Safe deposit boxes are not always a good place for wills because many banks have restrictions on who can access and remove things from them. If a family member or executor can’t open your safe deposit box, it could tie up your estate for some time. Make sure you understand your bank’s rules about withdrawals from safe deposit boxes before putting your will in one.
For many families the real hurdle of creating a will is emotional. To make things easier and maybe even fun, make a pact with another family or two to get your wills done at the same time. Since you need at least two witnesses not named in your will, get together and sign each other’s documents over bagels and coffee or wine and cheese. This can take a lot of the intimidation out of the process.
How Can I Make Sure My Child is Taken Care of When I’m Gone?
Start by making a separate legal will for each parent: Joint wills don’t make a lot of sense, even if it seems more efficient to create just one document. A joint will binds the survivor to the provisions of the will, which doesn’t leave a lot of room for the surviving parent to change his or her mind if circumstances change radically.
Next, make sure you name your spouse or partner as your sole beneficiary. Otherwise the court might divide your property between your spouse and kids and appoint a state administrator to oversee your children’s property until each one turns 18. Name your children as alternate beneficiaries in case you and your partner pass away at the same time.
State that your spouse or partner is to be the guardian of your children in case one of you dies. Then name someone else as an alternate guardian in case your spouse is unwilling or unable to care for your children. Spelling it out prevent someone from coming forward and disputing the custody of your children. If you don’t name a guardian, anyone who’s interested can ask for the position, leaving a judge to decide what’s best for your children.
Choosing a guardian is probably the most difficult task for parents. It’s hard to imagine anyone else parenting your children. But it’s also one of the most important things you can do to ensure your children’s future well-being.
You should also name a trustee – someone to manage whatever property you pass on to your children until they become legal adults. If you don’t name a trustee, the court will do it for you.
You can choose one person as both the guardian and trustee or choose two different people. Experts disagree on the best way to handle this. Some say it’s easier to choose the same person to care for your children and their money, while others warn that people who make good parents may not be the best at handling money. Think this one through and talk it over with your partner.
What’s the Best Way to Leave Property to My Child?
There are many ways to leave property to young children. According to Steve Elias, editor of The Quick and Legal Will Book by Nolo, the following are some of the most common. In each case, you need to choose someone to oversee the transfer of your assets.
You can name a property guardian to handle your finances on behalf of your growing children. A property guardian is appointed by the court, according to the instructions in your will, and the court closely monitors his actions.
A property guardian is required to file a beginning and ending inventory of your estate as well as annual paperwork on how he’s managing the money. Any decisions he makes are subject to court approval. A property guardianship ends when each child turns 18. When that time comes, your child can spend the money on whatever he likes with no restrictions.
Although this is the least complicated way to pass property to your children, it can be very burdensome for the person you name as property guardian. However, if you’re not completely confident that the personal guardian you choose will make solid financial decisions, you may welcome the court’s oversight. Otherwise, you might prefer one of the options listed below.
Custodial account (Uniform Transfer to Minors Act)
If the person you plan to name as your children’s financial trustee or property manager has a history of making solid financial decisions, consider leaving money to your children in custodial accounts. The courts have no oversight over these accounts, which are governed by the Uniform Transfer to Minors Act (UTMA).
UTMA is the same across nearly all states, so the property manager (also known as a custodian in this case) will be recognized by most financial institutions immediately. That recognition makes the job smoother and easier. Any bank or stockbroker can set up a custodial account for you in minutes.
A trust fund is most useful if you have complex assets that you’d like to pass on to your children, such as a family business or significant amounts of money or property.
A trust fund gives you much more control over your money. It allows you to name the age at which distributions are made to your children, parcel out a little money at a time, and restrict how the funds are used. You can create the trust and appoint a trustee in your will. That person will then need to open a trust account at a bank or brokerage firm and file a tax return for the trust each year.
One downside: Because trust funds are individually tailored to meet each family’s particular circumstances, the financial trustee you name for your children has to provide more paperwork to banks or stockbrokers to document his decisions.
Do I Need to Worry About Taxes Eating Up My Child’s Inheritance?
For 2011 and 2012, the lifetime gift tax exemption increased to $5 million – the same as the federal estate tax exemption – meaning you can leave up to $5 million to your children without worrying about estate taxes. Couples can together leave up to $10 million.
Keep in mind that life insurance policies, pension benefits, and real estate all count toward your total assets. (This is the different from the annual gift tax exclusion, which is $13,000.)
If you know or suspect that your estate will be worth more than the exemption amount, talk to an estate attorney about how to minimize the tax burden on your children.
I hope you found this helpful! I cannot stress enough how important this step is. Don’t delay!