You and the other parent should be on the same page about who should be selected as guardian. However, if you are divorced or not on good terms with your child’s other parent, you may not get them to agree with you about who should be the guardian. Generally, if possible, parents select a relative or close friend to be the guardian of their children. If parents die unexpectedly, it is likely that children will be most comfortable living with someone with whom they already have a close relationship, such as a grandparent, aunt, or uncle.
Additionally, consider the guardian’s religion and lifestyle preferences. You want to make sure that you choose someone who will raise your children how you want them to be raised. [2] X Research source Generally, you should choose a guardian that you see as “responsible,” whatever that means to you personally.
Reasons that the other parent should not be guardian include: lack of a stable home for your children, mental or physical problems that could impede your children’s care, alcohol or other substance abuse, and physical abuse. [3] X Research source
Even if you appoint a guardian in your will, the court will not appoint the guardian unless doing so is in “the best interests of the child,” so choose someone who is up to the task. [4] X Research source Although the court might appoint someone different than the person named in your will, the court will give your choice great consideration, and will not go against that choice unless the guardian will be unable to properly take care of the child, such that awarding guardianship would not be in the child’s best interest. If the person to whom you want to leave guardianship is your same-sex partner, include a letter to the court explaining how he or she is a better choice than a blood relation. [5] X Research source
If possible, speak with the potential guardian in person, and explain to them why you want them to raise your child in the event that something happens to you. Explain that they will have to provide certain information to the court, including a criminal history, before the court will appoint them formally as guardian. The court may also require the guardian to go through an investigation. Usually, an investigation doesn’t mean that the guardianship is more likely to be denied or that the judge has seen red flags. In some jurisdictions, it is just the court’s policy to investigate everyone. Because the judge is entrusting the guardian with raising the child, he or she usually wants to check and make absolutely sure that the guardian is able to take the responsibility.
Regardless of what instructions you leave for the use of your child’s assets, the guardian has the duty to handle the assets in the best interests of your child, which may include disregarding instructions. Aside from leaving any property to your children, you do not need to put any other instructions in the will on how the property should be handled.
All states have provisions in their probate codes regarding how much a guardian will be paid. To look at the rules for your state, check: http://estate. findlaw. com/planning-an-estate/state-laws-estates-probate. html
Unlike property that passes in a will, your beneficiaries should receive money from the life insurance policy as soon as the company is informed of your death. There is no probate process for a life insurance policy. Once the beneficiary receives the money, the guardian has the power to take possession of the money and use it for the child’s benefit. If you need to add a child as a beneficiary or remove a child, simply contact your life insurance policy and tell them that you want to change the beneficiaries of your life insurance policy.
The correct option for your estate depends upon your specific situation. Consult with an attorney before deciding and have the attorney oversee the process since both wills and trusts are complicated matters.
In community property states, half of a couple’s estate accumulated during the marriage belongs to the spouse. Therefore, the will cannot give away property that belongs to the spouse unless each party signed a prenuptial agreement with regard to the estate. Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Residents of Alaska may also choose the community property system by signing an agreement to do so. [9] X Research source In common law property states, which is every other state not listed above, the person owns anything on which he or she is the sole signer for the deed, contract, or other ownership documents. The person can bequeath any of this property as he or she sees fit. [10] X Research source
If you don’t have a social security number, provide a different form of ID, such as a driver’s license or state issued ID number.
If you think that your will could be subject to a challenge of undue influence, contact an attorney who can help you protect the will from the challenge. Such challenges may stem from “unnatural dispositions,” including cutting your family out of the will, giving all of your assets to someone that is not in your family if you have living family members, and giving your assets to someone that you have not known for very long. Declarations should be to the effect of: “I declare that this is my last will and testament, and that I hereby revoke, annul and cancel all wills and codicils previously made by me, either jointly or severally. ”[11] X Research source You should also include a statement to the effect of: “This last will expresses my wishes without undue influence or duress. ”[12] X Research source This proves you were in no way coerced to state the will.
I am married to [spouse’s first and last name], hereafter referred to as my spouse. I have the following children: [list children’s first and last names as well as their dates of birth].
I hereby nominate, constitute and appoint [executor’s first and last name] as Executor. If this Executor is unable or unwilling to serve, then I appoint [backup executor’s first and last name] as alternate Executor.
Although not required, you can write clauses empowering the guardian of the estate to sell any real estate that you leave to your children, invest for your children, and open and handle bank accounts for your children.
Include provisions that clearly explain who gets a beneficiary’s gift if that person dies before you. If you leave it at that and do not name an alternate to specifically receive Barbara’s gift, her gift will “lapse” and go back into the pot.
For example, one line may read, “To Barbara Smith, I give my house at 123 Cherry Lane, and to Chauncey Gardner, I give 50% of the remainder. ”
If your assets change after you write the will, you should edit the will to include these changes, or execute a new will.
Before you sign the will, find out how it should be signed in your state. How you and your witnesses sign the will is a matter of state law and can affect its validity. Some of those state differences include whether you must sign or simply initial each page before the full execution at the end. Do not add any text after your signature; in many states, anything added below the signature will not be included as a part of the will.
