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Published February 21, 2008 by
By making a last will and testament, you are getting the final word on who gets what part of your estate, and, more importantly, who will care for your child when you are gone. Though a will is a valuable document, people often procrastinate about putting one together. It’s easy to put off making a will because it isn’t a pleasant pursuit for most people. But for parents, a will is, at the least, peace of mind insurance.
A common misconception about wills is that they’re only for wealthy people. Because jointly owned real estate, bank accounts, life insurance benefits, and pension proceeds are typically not covered under a will; many people believe that a will is not necessary if they don’t have extensive personal property. But from a parent’s point of view, the most important aspect of a will is the designation of a guardian in the event both parents die at the same time. Maybe you don’t really care how your personal property is divided up, but you do care about how your child is reared.
Therefore, discussions about the person or persons best suited to raise your child, is important. Do you want someone who knows your child well, who has similar values and religious beliefs? Take into consideration the age of the potential guardians and their interest in taking on responsibility of a child. This is important; if they feel they wouldn’t be good parent substitutes, consider someone else. It is imperative to discuss everything with the guardians you have in mind.
Another question is guardian of the person versus guardian of the property. The person who will watch over your child does not necessarily have to be the one who will take care of your financial needs. Of course, one person can do both, but if you have a relative who you feel would be a wonderful substitute for you and your spouse, but not equipped to manage the child’s property, you can name both a guardian for the person and one for the property.
You will also have to name an executor [male] or executrix [female] of your will. That person is responsible for gathering together your assets, pay any outstanding bills, paying the death taxes, and then distributing whatever assets remain, according to the specifications of the will. Your executor can be a relative, friend, attorney, or an institution such as a bank or a trust company. Some people choose an individual and an institution, in order to have the personal approach of a trusted friend and the knowledge of an organization. Either way, trustworthiness, reliability, and organization are attributes your executor should possess.
Although state laws vary, some common principles apply regardless of where you live. Though there’s no law that says you must have a lawyer draw up your will, if you want to make sure you have a valid will, hire a competent attorney who is familiar with state law and, to some degree with applicable federal and state estate tax laws.
The written document prepared by your lawyer must be signed by you in the presence of two [or sometimes three] witnesses, although many states allow you to verbally state to the witnesses that you have previously signed the will. The witnesses should not be persons who are beneficiaries under the will.
Two of the most important requirements in making your will valid are that you tell the witnesses the document they are signing is in fact your will [not just some random legal document] and that each witness sign the will at your specific request. This may sound quirky, but the failure to observe these requirements has led to the invalidation of many wills.
The original will should be kept in a safe place, but not in a safe-deposit box, since these are often sealed upon notice of death.Your planning will go a long way toward creating a happy and successful future for your children. But don’t fall so in love with your plans that you never review or change them. Remember to be flexible; if your financial outlook has changed, perhaps some of your plans should change as well.