Can Anyone Help with What You Can Legally Set up in Will

Updated on March 05, 2007
C.E. asks from Cuba, MO
22 answers

The situation is that I have a 6 month old baby girl and I have not spoke to her "father" since I was about 4 months pregnant he decided that he didn't want a child and that he wanted no part of any of it. I have an appointment with a lawyer in a couple of weeks and I wanted to know if anyone knew if I could put in my will that I want her to go to my mom and dad if anything happens to me and then if something should happen to my mom and dad then she goes to her godmother (my best friend) my question is can I do that legally since he is her father? I really don't want her to go to him and I sure don't want someone to send her to him since she has never even seen him before in her life.

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answers from St. Louis on

sorry...I posted before I realized so many people had helped. You already got great advise. Good luck!

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answers from Kansas City on

C., I am an estate planning attorney so shouldn't be giving legal advice over an online resource like this :)

But, having said that, the first post on here is on the need for a Trust....... unless there is a strange situation you did not reference in your message, you do not need a Trust. Attorneys, financial planners, publishers, accountants often market Trusts to anyone, but in your situation it is simply not necessary and if the attorney you visit tries to talk you into a complicated (and expensive) Trust, call a different attorney. What you likely need is a basic will for the primary purpose of naming guardians and basic power of attorney documents. A basic will and power of attorney documents should never run more than $1000 and hopefully, you will be looking more in the $500 range. Like I said, that is as long as there is nothing complicated here (like you are receiving trust distributions from a family trust, have over a couple million dollars in assets, have a complicated family structure, special needs child, a business, etc). But, you indicated you are a single mom of a six month old who works as EMT - definitely not a candidate for a Trust.

Talk to your attorney about the guardianship issues, I think most of the posts are accurate, you are simply telling the Court upon your death who YOU wish to be guardian of your child. Dad could pop up and he certainly has rights, but your preference is very much a factor in the Court's decision and having it in a formal will is the best way to convey that preference, so on that note - good for you for doing what is best for your baby and acting like a responsible parent. You would be amazed how many people - in all economic and professional levels - do not take care of this simple step for their children and end up in expensive, emotional and awful battles when something happens (like Anna Nicole :) ).

2 moms found this helpful


answers from Oklahoma City on

I don't think a will could stop him if he WANTED sounds like you don't have to worry about that...I would be more concerned about his parents trying to fight your parents for custody...and you don't mention them at all.

Your Lawyer should be able to handle the will and handle any questions you may have...a will can be contested it is not iron clad...but having your wishes documented is a great idea...

Have you considered having him sign away his parental rights?

1 mom found this helpful


answers from Columbia on

I'm not sure, but you might have to have his rights terminated which is porbably something you should do anyway, since you don't want him showing up three years down the road with a sudden change of heart demanding visitation. I think in Missouri you can have rights terminated on the grounds of abandonment after six months of no contact. Good Luck.



answers from Springfield on

Don't quote me because I don't have a legal background, but if his name is on her birth certificate, then he would have legal custody of her if anything were to happen to you. You can voluntarily ask him to sever his parental rights if you think that he would do it. If not, after 3 years of no contact between your daughter and her father (that includes absolutely no child support from him either), then you could go to court and he would lose his rights on the basis of abandonment. I may be mistaken on this part, but it may be that if his name is on her birth certificate, then he can't give up his rights unless there is someone who was willing to adopt her as a new father. I may not be accurate on that, but I believe that is what my sister was told when her husband went to legally adopt her son (the biological father had not had contact in 5 years and wanted to give up his rights, but my sister was told he couldn't unless her husband was willing to adopt.) I hope you can get everything worked out, especially for your daughter's sake. Hopefully nothing will happen to you, but that would only add to her trauma in the event that something did, and she had to live with a total stranger. I wish you the best of luck!



answers from St. Louis on

I just started reading about all of this stuff myself, but from what I understand an irrevocable living trust is better than a will. With a will your family will end up in probate (high cost- $ that could go to your child instead), but with a trust, your parents could just take charge of everything immediately. Also, if something happens and you are still alive, but unable to care for your "estate" the trust can easily be transferred to your parents. A will only goes into effect if you die.

Also, in a living trust, you can make all the provisions for child that you can in a will, including naming guardians for minor children.

A trust can be more expensive, but in the grand scheme of things, it seems like it is worth it. If something would happen to you, your child would already be going through enough. Who wants to add court troubles to that?

If you want to read more about it, I suggest picking up 'The 9 Steps to Financial Freedom: Practical and Spiritual Steps So You Can Stop Worrying' by Suze Orman. She does a great job of explaining these things.

Good luck to you!



answers from St. Louis on

I worked as a Paralegal for ten years before deciding to stay home with my son. I can't give you any legal advice, but I can tell you that you should be able to contact that attorney you have an appointment with and ask him your question. If he is any kind of a lawyer, he should be able to give you some free quickie legal advice to ease your mind and let you think about the well-being of your child w/o having to stress out about her "father" situation until you see him. Only a licensed practicing lawyer should give you legal advice.



answers from Kansas City on

My sister is in the same situation, her son is willed to our mother if something were to happen to her. The lawyer told her that the bio dad could fight it in court but being that he has never seen her son who is now 7 he probably would not have much of a chance even though he has faithfully paid child support. I hope this helps and I hope your will won't be needed until you are old and gray and have had a chance to see that baby grow to a wonderful woman.



answers from St. Louis on

I am not a lawyer, but as long as his name is on the birth certificate, then he has rights, and can try to enforce them at any time. If you did not put his name on the birth certificate, then you might be ok. If you did put his name on the cert, then you can have a lawyer draw up papers that he can sign saying that he has given up all partental rights. Then if anything were to happen to you, your baby wouldn't go to him. Also if he decided 5 years down he wants to be in her life, he has no legal action to try and sue for custody or visitation. Defentialy something that is worth discussing with the lawyer.



answers from Lawrence on

If the father is not on the birth certificate it should be easier than if he is. I have a six month old and have not written up a will. All parties involved have made a verbal agreement of how things would work if something happened to me and his dad. I would suggest talking to a lawyer, and then all parties involved, even the father. He has certain rights as the father, but if he really wants nothing to do with you and the child he might be willing to sign off on his rights, which will prevent him from trying to cut into the picture later.

Goog luck!



answers from Rockford on

Did the dad sign over his parental rights? If not then he might have a chance but if he doesn't care about your child then the courts probably wouldn't give your child to him anyway.



answers from Bloomington on

check online or you can goto almost any office store and they sell the paperwork for wills and you could get the info from it. here are a few things you might consider.
guardian ship of child
any property(s)
to who everything should goto
final arangements
hope this may help some



answers from Joplin on

Is he on her birth certificate? If not, then as far as the state or anyone else is concerned, he is not her father. If he is, and if I understand the law correctly, you can put whatever you want in your will. Just know, he can always come back and contest it. He would have to have a paternity test and other hoopla, but you certainly need to have a will set up. We all should. Which reminds me, I need to do the same! Good luck to you.



answers from Wichita on

Yes you need to go to court and get "legal custody rights" and maybe some child support ;) after that you can do what you want with the child and put that in a will if you want, but first you have to go through that long battle of custody! Hope this helps!



answers from Kansas City on

I am not sure how it would work in your situation, but after my parents got divorced when I was little my mom got sole custody of us. I do know that it was in place that if something were to happen to her, my brother and I would go to live with her parents. Good Luck.



answers from Austin on

You can legally put that in your will and your lawyer will tell you what you need to do to make sure your wishes are carried out. Were you married? If so, what does the divorce specify as far as custody goes? If you have joint custody, you should petition the court to remove that on the grounds that he has removed himself and has never met his daughter. You have a good case. He can always come back and contest the will but he would have to go to court to do so. The courts usually try to do what's in the child's best interest. If your parents are involved in her life now and the father isn't, I think they'd be hardpressed to justify giving your daughter over to a total stranger. Good luck!



answers from Denver on

He should be able to sign away parental rights, but I'm pretty sure there's no way to specify with little doubt where your child will go without getting him to sign something.

I think you definitely need to consult with a lawyer to make sure this is foolproof.



answers from Kansas City on

Dear C.,
Yes, you can have a will drawn up with your wishes. It will have weight in a court, but unfortunately it will not keep the father from having his rights. The father, by law, has to be notified in events such as that, but if he doesnt respond over a period of time, the courts can decide without his say.Also, the courts will also make sure the child goes where it is best for her welfare. If you could get the father to give you sole custody, that would be great. Im sure a lawyer could help you with that part.
Good Luck!



answers from St. Louis on

If he is not on the birth certificate then as far as I'm aware he is not your childs legal father. He would have to go to court and either prove to the court that he never knew you were pregnant and just found out he had a child or give them a really good reason as to why after x amount of years he now wants to disrupt this childs life. Either way it is very unlikely that will ever be a problem.

If he is on the birth certificate then you will need to go to court and he will probaly get custody if anything were to happen to you. Also, if he is legaly you childs father and you go to court, he will get visitation and have to pay child support. I've been through this myself, thanksfully my son's bio father was not on the birth certificate so I didn't have much to worry. I did consult a lawyer when my son (now 8) was about 2. In MO after 6 months of no contact, at his choice, or attempt to contact it is considered "legal abandoment" and he no longer had any parental rights to my son. Good Luck!



answers from Honolulu on

Well, you can say in your will that you want your child to go to your parents but he might contest it in court and will most likely win. A safer bet is to say that you want your money to go into a trust for your daughter and your parents are in charge of the trust (and what can come out of the trust for your daughters care) until she is old enough (I would say after college so she can take pout more in loans...) to get the $$$. This way the "father" will be less likely to want your child because there is no $$$ attached to her only bills and herself. I would read up on trusts.



answers from St. Louis on

Until he is established as her parent through court, he has no rights. K.



answers from St. Louis on

As far as I know you can put anything in your WILL but its not 100% guaranteed that the WILL would stop him from getting the child, he can have a strike against him if he isnt paying child support, maybe if possible you could get a signed agreement from him that he wants nothing to do with his child. Normally the child would go with the other parent no matter the situation. But state in court or with the lawyer that he wants nothing to do with her (which I think is sad) and he isnt paying child support and you havent heard from him. He hasnt shown any signs of wanting any part of her.

Hope that helps


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