August is National Make-a-Will Month. Now, I’m not sure who comes up with these various national celebrations each month, but because it’s Make-a-Will month I feel compelled to discuss with you the often-overlooked advantage of having a Will.
If you have minor children, a Will is the only means you have available by which you can place someone in charge of your children after you have passed away. There are many ways to distribute assets without a Will. You can have jointly owned financial accounts. You can have beneficiary designations. You can have a joint owner listed on vehicles and real property. However, to place a particular person(s) in charge of your children should you die, you must have a valid Will.
Therefore, if you have minor children, there is no better reason to have a Will. Do it so the person you want watching your children is empowered to do so. Said differently, this will ensure that the person you don’t want to raise your children doesn’t raise them. Can you imagine anything worse than your children being raised by someone you don’t want to do so?!
In your Will, you can name a Testamentary Guardian. This is the title of the person you nominate to care for your children. That person’s home becomes the home for your children and this person becomes the caregiver for your children. Generally it is a good idea to leave assets so this person will have financial resources to care for your children in the manner you want them cared for. Regardless of the monetary issues, the Testamentary Guardian will become the guardian for your minor children.
This is not to say that the person you nominate will in all cases become the new guardian of your children, as challenges can be brought against the person you name. However, the Probate Court must be convinced that the person you named is unfit to raise your children (as you might expect this is a high standard). Therefore, unless the person you’ve named is in jail, is habitually on drugs, cannot maintain a place of residence, or other such disqualifying factor, you can generally rest assured that your choice will not be denied.
If you die without a Will, any family members and friends can petition the court to become your children’s guardian. Since the court views your attitude as indifferent (you didn’t create a Will), the court is not interested in whatever your oral pronouncements may have been during life (every person who will testify at these hearings will swear she heard you say you wanted “so and so” to raise your children if you died). Each person who wishes to have custody of your children will have to put up a fight and demonstrate to the court why they are the best choice for raising your child. THE COURT DECIDES WHO GETS CUSTODY OF YOUR CHILDREN.
If you couldn’t think of a good reason to do a Will, you have one now. Call Robert W. Hughes & Associates and let us assist you in preparing a Will and the accompanying documents needed for a complete estate plan.
