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Write Your Will. Really

February 8, 2011

Imagine this: you are at your co-op preschool. It’s one of those mandatory parent education meetings. An estate planner comes to talk about basics for young parents. The lawyer asks people who have thought about doing a will to raise their hands. Almost every hand goes up. Then the lawyer asks people who have actually done a Will to raise their hands. Three or four stay up in a room with thirty to forty people. Everyone else looks down at the floor, abashed.

In ten years of doing estate planning for families, I’ve seen this story play out hundreds of times – maybe ten percent of the people in that room have done something that’s easy, cheap, and really important. And those families, the ones at the preschool meeting, are motivated, educated, caring parents. They make sure their kids use car seats, brush their teeth, and eat a balanced diet. So what’s the deal? Why can’t they take an hour or two to put together a document that nominates guardians to raise their children to the age of eighteen? Why don’t they make sure that any money their children inherit will be managed prudently for their benefit until those kids grow up enough to manage it for themselves?

Clearly, it’s not rational. It’s deeper than that. It’s weirder than that. Part of it is that young families feel so financially strapped that they can’t imagine needing an estate plan. Part of it is that it’s depressing to think about dying, especially when you are chasing toddlers around all day and life’s so new. And for some families, they just can’t figure out who to pick to nominate as a guardian. That just stops many families cold in their tracks.

If any of this sounds a bit close to the bone, I’ve got news for you. Not doing a will is so not a good idea. Not choosing who should raise your kids if you die before they’re eighteen years old is not one of those decisions that goes away if you procrastinate. What happens if you don’t make the hard choices is that someone else, a judge, who doesn’t know you, doesn’t know your kids, and, perhaps most importantly, doesn’t know your brother’s evil wife, is going to make that choice. Wouldn’t you rather be the one in charge of that decision?

A will is a really simple document. Though I don’t recommend this, you can hand write one on a napkin and it will be legally valid if it conforms to state law. There are hardly any magic words required. You can state who you want to leave your property to and who you want to nominate to serve as a guardian for your minor children. You can do a will if you have no money and are living under a bridge. You need to be over eighteen and you need two witnesses to watch you sign your will. That’s about it. You can get a book from the library and copy out a simple will for free. You can go to Nolo.com and do a simple online will for less than the cost of a date night. You can hire a good estate planner and take advantage of their experience and advice to craft a will that goes past the basics. Just find a way to get it done.

I totally get that choosing a guardian is a difficult choice—when you get right down to it, NOBODY is going to be as great a parent as you are–but please keep in mind that choosing a guardian is like preparing for a big earthquake: you don’t do it because you want to, you do it because you want to make sure that if the worst happens, the people you love the most are as prepared and comfortable as possible.

Finally, here’s a really subversive thought: you might discover, as many of my clients have, that making a will actually reduces your anxiety about dying. There’s something about making a contingency plan that can be comforting. You still can’t control untimely fate, but you can be secure in knowing that you’ve done everything you can to make sure that your children would be safe and well cared for if the unexpected did happen, and you were mowed down by a truck on your way to pick up Chinese take-out.

If choosing the guardian is holding you back, here are some ideas and techniques that may help you move ahead. Ideally, you want to name two or three people to serve as guardians, that way if your first choice can’t do it when the time comes, you’ll have a back up or two.

1. Narrow your time frame. Think about the next three to five years. If your children are babies and your parents are young, grandparents may be the right choice. When your kids are teenagers and your parents are in their eighties, revisit that will. The odds are you’ll be revisiting it within 5-10 years anyway. Things change. As your children get older, they’ll change too. They might be okay with moving to Chicago when they’re little, but probably don’t want to move far away when they’re in middle school.

2. Make lists. Go off to separate corners. Make a list of your top five choices. Have your partner make that list too. Get back together. See if you can come up with three choices that you both agree with.

3. Compromise. Nobody is perfect. So, to pick a guardian you are going to have to compromise. Sorry. Figure out what is the most important thing for you and compromise on the rest. Is it location? Is it faith? Is it growing up near family and friends? Whatever matters most to you, identify it. Then let that guide your choice.

4. Focus on your children. Who do your children love and respect? Who would they most like to be with if you’re not around? You are not obligated to name family members. If your kids love your best friend from college, pay attention. If your kids love your parents, but you worry that your parents are getting old, remember, you can always change your will in three to five years.

5. Widen your net. You do not have to name family members. You can name dear friends if that’s the best choice for your kids. And you are not under any legal or moral obligation to tell your mother-in-law that she’s not your first choice. While I do recommend that you discuss your choice with the people you do want to serve as guardians, it’s perfectly all right (and maybe prudent) to keep your decisions private during your lifetime. If you are really concerned that your mother-in-law will be devastated to discover the truth, consider writing a letter, only to be opened in the event of your death, explaining why you made the choices that you did.

6. Spend time with the people you are considering. It would be funny if it weren’t so awkward, but I have gotten phone calls from clients who are in the process of writing a will after they’ve had a disastrous trip to the beach with a relative. Suddenly a brother’s lack of ability to laugh off the chocolate ice cream in the backseat of his new car takes on a whole new significance if he’s someone that you thought might be a good guardian, or a sister’s all white apartment suddenly doesn’t look so inviting when considering a long-term stay by your own kids.

7. Once you’ve made your choice, talk to your prospective guardians. You might find out that their dance card is already full and they’re not comfortable with taking on another potential responsibility. You might find out that they need you to increase your life insurance so that there’s enough money to finance a bigger house.

You’ve done harder things than make a will. (Getting through this week was probably way harder than doing a will.) Self-help wills are cheap, straight forward and get the basics done. Estate planning attorneys are, as a rule, easy to talk to and actually nice (we may be the world’s happiest lawyers). You don’t have to solve every estate planning problem and you don’t have to make it complicated and memorize the tax code. You can do that later. For now, focus on getting the basics done. It’s not too late. Here’s my motto for estate planning and most parental tasks: Feel good, not guilty!

Liza Hanks practices estate planning at Finch Montgomery Wright, where she specializes in creating estate plans for families of all ages. She’s also the author of The Mom’s Guide to Wills and Estate Planning, ‘The Busy Family’s Guide to Estate Planning’, published by Nolo Press (2007) and The Trustee’s Legal Companion (Nolo, 2010, with attorney Carol Zolla). Liza blogs at Ask Liza: Everyday Estate Planning. She is a 1996 graduate of Stanford Law School, a former magazine editor, and the mother of two children, aged 15 and 10. In 2001, she left a large Silicon Valley law firm to start a practice that makes a positive difference to children and families._

Editor’s Note: Do you have a question about guardianship or wills? Ask in the Comments below, and you may be a lucky winner of Liza’s new book ‘The Mom’s Guide to Wills and Estate Planning’.

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