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Preparing Your Last Will and Testament, Protecting Your Child's Best Interests

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: June 8, 2020

It is not common for people to prepare for their deaths. Only an estimated 32 percent of Americans have a will in 2020, down from 42 percent in 2017. And over half of all Americans over the age of 55 have no estate planning documents whatsoever. That is entirely understandable. We do not want to […]

It is not common for people to prepare for their deaths. Only an estimated 32 percent of Americans have a will in 2020, down from 42 percent in 2017. And over half of all Americans over the age of 55 have no estate planning documents whatsoever.

That is entirely understandable. We do not want to think about our mortality, let alone act on the worry that we will not be here one day – until that day becomes painfully close. But given the state of the world, it is not unreasonable to suggest that death is something we should at least make plans for – especially if children are involved.

A simple will can help you ensure that your child is taken care of in exactly the way you want, and not leave it up to your state’s laws to decide who ends up taking care of your children.

Why Bother With a Last Will and Testament?

The dead cannot own property, nor assets. Legally speaking, anything you currently own must be distributed to someone else the moment you die. Some things are informally taken care of – groceries, toiletries, and so on – are usually simply passed onto whoever inherits your home.

But any personal real estate with substantial value, as well as any form of real property, must be distributed according to state specific intestacy laws. Usually, this means that everything you own will be distributed to your next-of-kin, with half of everything going to your spouse, and the other half being split evenly between your children. It is not always that simple, and many states require different codified intestacy laws.

Intestacy laws do not account for informal relationships or ties that are not based on marriage or kinship. As such, a decedent’s common-law partner or spouse, for example, is not entitled to anything in most states. The same goes for godchildren or close friends.

Furthermore, any surviving dependents (from minor children to elderly parents) are given guardians as per the probate proceeding. These chosen guardians may not always be who you think to be best suited to the role.

A last will and testament is a useful estate planning document that gives you the power to determine who gets what, including those omitted in intestacy law. A last will and testament also gives you power of attorney to appoint a guardian for your surviving children and other dependents (as well as successor guardians, should your first choice pass away before you do).

There are limits to what a will can and cannot do, but a will is often a simple and cost-effective way to plan the distribution of normal, non-complex estates, and ensure that your children are properly taken care of by someone you trust and know.

Why a Will Specifically?

Wills are not the only legal document that can determine who gets what – but they are the only estate planning document for naming a legal guardian for your dependents. Wills are also simpler to implement and finance than the alternative.

Trusts, which can be used in place of wills to distribute assets and property, are usually effective immediately rather than posthumously (living trusts), and as such, they must be managed by a trustee.

Not only is a trustee entitled to some compensation based on the size and duration of the trust, but trusts can optionally take time to resolve, even after your death (especially if they’re meant to provide financial support over years or decades, rather than resolve immediately).

Trusts are still a superior estate planning option in many cases, but there is a time and place for every kind of estate planning tool. For most people, a well-made last will and testament will provide the right coverage, at the right cost.

What You Will Need for Preparing a Last Will and Testament

A last will and testament is always a last will and testament – meaning that, when it’s written, it overrides all previous versions. While it’s smart to be prepared, it’s also smart to amend one’s estate plans regularly – at least every few years, or after every major life event, such as a death, birth, divorce, or marriage in the family.

When writing a will, you will want to choose a guardian for your child and an executor for your will. The executor or administrator will be vetted and approved by a probate court after you die, and it will be their job to oversee the execution of the will (i.e. the distribution of your assets). This is essentially a part-time job, and it is a hefty one. Choose someone you trust.

You will also need to decide who your beneficiaries will be. This can be a point of contention for many, which is part of why a will can also prove instrumental in stemming sibling rivalries and family quarrels, by letting you put an end to the argument of who gets what.

Finally, you will need witnesses. Without witnesses, there is no external proof to determine a will’s legitimacy in probate court. You will need witnesses to:

    • Be there when you sign the will or have expert knowledge of your signature – and thus testify that it is indeed your will.
    • Write and sign a witnessed self-proving affidavit if your will was not witnessed, and attach it to the will, legitimizing it.

Pets, Funerals and the Probate Process

There are things a will cannot do. You can make suggestions on who takes care of your pet. But these suggestions carry no legally enforceable weight. A pet trust, on the other hand, allows you to dedicate a portion of your estate specifically to caring for your pet until their death while assigning a new owner.

You can use a will to declare what kind of funeral arrangements you wish for, but wills are sometimes found late. Unless your assigned executor remembers to dig up their copy as soon as the time comes for planning funeral expenses, it may be better to write up instructions for your funeral separately or tell your family how you would like to be buried.

Finally, a will cannot skip the probate process. Smaller estates with a total value of up to $150,000 can petition for an expedited probate process in California, which can help speed things along. But larger, more complex estates may want to look into ways to minimize or avoid probate, and the cost it carries.

If you wish to protect your children and specifically choose a guardian for them, however, you must write a last will and testament. Doing so alone or with help from the Internet is not advisable legal advice, as even simple mistakes can end up costing your family a substantial amount of time and money to rectify. Always consult a local law firm or legal professional when deciding to draft an estate planning document.

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