Having a will is important for parents because their children are very dependent on them, both emotionally and financially. Since children cannot manage finances, the court will appoint someone to be their guardian to oversee the financial needs of the children and take care of them. In the case of an unexpected death, you'll need to name the person-or several people-to manage your money and raise your children. If you die without leaving a will, all core decisions regarding care and inheritance for your child will be made by the state/provincial government.
Step
Part 1 of 3: Choosing a Guardian for Your Child
Step 1. Talk to your partner
The two of you should jointly determine who will be the best guardian for your children and manage finances. You will need to choose someone to be the physical guardian of your children, as well as someone to manage your children's finances until they reach the age of 18. Both roles can be performed by the same person, but this is up to you.
- You and your partner must agree on who to choose as guardian. However, if you are divorced or not on good terms with your partner, it may be difficult to get them to agree on who should be the guardian.
- In general, if possible, parents will choose a relative or close friend to be the guardian for their children. If these parents died suddenly, chances are their children would feel most comfortable living with someone they knew well, such as a grandparent, aunt, or uncle.
Step 2. Consider the age, health and location of potential guardians
Know that whoever you choose to be your guardian must be someone who can properly care for your children. Consider the above factors. For example, if the guardian lives outside your province, consider the fact that your child will have to move to a new location and make new friends after losing their parents.
- Also, consider the guardian's religion and lifestyle choices. Make sure you choose someone who will raise your child in the way you want.
- In general, you should choose a guardian whom you deem “responsible”, according to your personal definition of liability.
Step 3. Act alone only when necessary
If your partner doesn't want to help raise your children, you can act on your own. However, be aware that if you are still alive, he may want to be appointed guardian of your children should something happen to you. In most cases, it is preferable for the children to be raised by one parent, but if you have reasons not to want your spouse to have custody of your children if something happens to you, you should appoint another guardian.
Step 4. Document everything when deciding alone
If you appoint a guardian without your spouse's input, then he or she may be able to sue the guardianship when something happens to you. If this is the case, the court will rely (or at least lean slightly) on your documentation of why you don't want your spouse to be the guardian. Therefore, you must ensure that you provide detailed information about the reasons why you do not want your spouse to be appointed as guardian.
These reasons include: the absence of a stable home environment for your child, mental or physical problems that could impact your child's care, alcohol or substance abuse, and physical abuse
Step 5. Determine the guardian
The person who will have physical custody of your children is called the “guardian”. After considering all the options, you should choose who you think will be the best person to raise your child or children.
- Even if you designate a guardian in your will, the courts will not grant your wish unless they are sure that this action will “meet the needs of the child in the best possible way,” so choose someone who is up to the task.
- While the court may designate a different person than you requested in your will, the court may seriously consider your choice, and will not oppose it unless the guardian is unable to properly care for the child so that the guardianship assigned to him is deemed to be unable to comply. the needs of the child in the best possible way.
- If the person you want to grant guardianship rights to is your same-sex partner, include a letter to the court explaining that he or she is a better choice than those who are related by blood.
Step 6. Speak to the guardian before writing their name on your will
Make sure you do this. Courts won't force someone to become a guardian, so make sure the guardian is willing to take care of your children before you formally file their name.
- If possible, talk to the potential guardian in private, and explain to them why you want them to raise your child if something happens to you. Explain that they must provide the court with certain information, including criminal history, before the court can formally appoint them as guardians.
- The court may also require that the guardian be investigated. Usually, an investigation does not mean that the guardianship is more likely to be denied or that the judge sees potential for harm. In some jurisdictions, it is simply court policy, which is to investigate all persons. Since the judge will be entrusting the guardianship to raise the child, he will usually want to check and make sure that the guardian is able to carry out his responsibilities.
Part 2 of 3: Choosing an Asset Trustee
Step 1. Understand the obligations of an asset trustee
The person who will manage your child's finances and property is referred to as the “asset trustee”. This person will make all decisions about your child's finances and property until the child reaches 18 years of age. If you wish, you can appoint the same person as your child's personal guardian for this position. However, you can also choose other people. Since managing finances and property does not mean that one has to know the child well, many people appoint a lawyer or accountant to be the guardian of these assets.
Step 2. Consider the people you trust
Once an asset guardian is appointed, this person will have the freedom to handle your child's finances and property at their discretion, until your child is 18 years old. Therefore, any specific instructions regarding those assets that you write in your will (for example, if you leave your home for your child with a note that he may not sell them) are not required to be followed by the guardian.
- Regardless of the instructions you leave regarding the use of your child's assets, the guardian has an obligation to administer these assets for the benefit of your child, which may include the right to disobey your instructions.
- Apart from leaving the property to your children, you do not need to prepare any other instructions in the will about how the property is to be managed.
Step 3. Consider paying the trustee
Typically, an asset guardian will waste time and resources managing your child's finances. Paying for it is a good habit in this case. However, you don't need to specify how much the trustee will receive, and you don't need to leave assets to the trustee in your will.
In the United States, all states have rules in their will codes about how much these trustees pay. To see the rules for your state, visit:
Step 4. Make sure the trustee has control over all assets
Assets such as life insurance policies are not inherited in the mail; however, the asset guardian will gain control of all profits received from a life insurance policy, as his or her name will be written in the will as the child's asset guardian, and the life insurance policy is part of this asset. Make sure this guardian gets control of the life insurance accounts that register your child's name as heir.
- Unlike property, which can be inherited in a letter, an account in your name will receive money from a life insurance policy as soon as the policy issuing company is notified of your death. There is no inheritance approval process for a life insurance policy. Once your account gets the money, the guardian has the power over the money and to use it for your child's benefit.
- If you need to add or remove a child's name as an heir, all you have to do is contact your life insurance policy and tell them that you want to change the name of your life insurance policy heir.
Part 3 of 3: Writing and Executing Your Letter of Inheritance
Step 1. Also consider a family trust fund
This fund is another option to meet the needs of your children. This trust fund can help avoid the need for a will approval process, and even save the family money in asset and inheritance taxes.
The correct option for your asset depends on your specific situation. Consult an attorney before deciding on it and have him or her oversee this process as both inheritance and trust funds are complex matters
Step 2. Understand what belongs to law and community
States/provinces are divided in terms of the property you can inherit when your spouse is involved. These two categories are community property and common law property.
- In states with community property systems, half of a couple's assets accumulated during a marriage go to one of them. Thus, an inheritance cannot provide property belonging to a spouse unless all parties sign a prenuptial agreement that regulates ownership of this asset. The states in the US that operate this community property system are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska residents can also opt for this system by signing an agreement to do so.
- In states that have common law property systems, i.e. all states not listed above, the person concerned is entitled to anything that bears his name as a signatory to treaties, contracts, or other ownership documents. This person can bequeath all his properties as he wishes.
Step 3. Consider all the governing agreements
Different types of legal agreements-prenup, divorce, trust fund, etc.-will control where your assets go after your death. The letter of inheritance does not regulate this. Before you create a will, determine the type of agreement in advance that will control the distribution of all your property.
Step 4. Identify yourself on the will to prevent confusion
Identify yourself by writing your name, social security number, and address. Placing these factors in your will helps to ensure that your will is not confused with someone else's with the same name. You can also enter your date of birth for a more specific identification process.
If you don't have a social security number, provide another type of identity, such as a driver's license or ID number
Step 5. Make a declaration
State clearly that you are in good mental health and capable capacity, and that this will describes your final hopes. Without this important step, your will may be in question. In addition, you can record the process of writing a will to prevent possible future accusations.
- If you think your will is vulnerable to being questioned by possible influence, contact an attorney who can help you protect this will. These challenges may stem from an “unusual disposition,” including not involving your family in a will, giving all of your assets to someone who is not a member of the family if you still have living family members, and giving your assets to someone that you haven't known for a long time.
- Your declarations must state that: "I declare that this is my last will and will, and I hereby cancel, and declare all wills and additional provisions that I have previously made, either alone or with others, not applicable".
- You should also use a statement that conveys the message that: "This final will expresses my wishes without any influence or pressure from anyone". This statement proves that you were not under any influence at the time of writing your will.
Step 6. Enter the family details
If you leave some of your assets to your spouse, children, or other family members, their names must be included in your will. Write these sentences if possible:
- I am married to [spouse first name and surname], hereinafter referred to as my spouse.
- I have the following children: [list your children's first and last names and their date of birth].
Step 7. Select an executor (in some states/provinces this position is called a “personal representative”)
This person will make sure your will is fulfilled. You may also want to include the name of the second executor if the first was unable to perform his duties at the time of your death. Language for appointing an executor should include:
- I hereby nominate, certify and appoint [the executor's first name and surname] as the Executor.
- If the Executor is unable or unwilling to carry out his duties, then I appoint [first name and surname of the backup Executor] as an alternative Executor.
Step 8. Empower the guardian
In this section you authorize the guardian or guardians of your children to act in accordance with their policies regarding how your children should be raised and their assets managed. Write down the names of the trustees and in what capacity they will carry out their duties. For example, you should distinguish between “custodian” and “asset trustee” to avoid confusion.
While not required, you can write clauses that empower the asset trustee to sell all the building assets you bequeath to your children, invest in your children, and open and manage bank accounts for your children
Step 9. Inherit your assets
State how you share your assets with people using percentages, which add up to a total of 100%. For example, a line might read, “To my mother, Barbara Smith, I bequeath five percent (5%).”
State any additional provisions explaining who will receive the inheritance if the testator dies before you. If you leave this clause as is and don't provide a name as an alternative to receiving the inheritance gift for Barbara, then the share will be "void" and return to your asset count
Step 10. Enter the prizes according to the conditions
You can include it in your will. However, if the conditions governing the acceptance of the gift are against the law, then the courts will not fulfill your wishes. For example, you can set conditions for an inheritance gift if the heir graduates college, but you can't set conditions for an inheritance gift if the heir must marry the person you want.
Step 11. State the specific assets present
If you want an beneficiary to receive specific assets, you can also declare them, and these specific assets will not count towards the percentage of your total assets (which is just the remainder), which is divided among the other heirs.
For example, a line might say, “For Barbara Smith, I gave my house at 123 Cherry Lane, and for Chauncey Gardner, I gave the remaining 50%.”
Step 12. Be as specific as possible
Make sure you do this at your discretion and write down all the addresses of any building property you own, a description of the private property, and the full names of the heirs.
If your assets change after you write an inheritance, you will need to edit this will to include the changes, or create a new will
Step 13. Apply the will
Signing an estate following your state's/province's legal rules is called the “enforcement” process. Complete the document with your signature, name and location. In most cases, the will must be signed in the presence of two witnesses, who will then sign a statement that you are of legal age and sound mind and sign your will in their presence.
- Before you sign this will, find out how it should be signed according to the rules in your state/province. How you and your witnesses sign it is a state/province law and may affect its validity. Some of the differences in state/province include whether you have to sign or just put your initials on each page before a will is enforced.
- Don't add any text after your signature; in many states/provinces, anything added under the signature will not be considered part of the will.
Tips
- Parents should ensure that their expectations for the care of their children are clearly stated in the will.
- Banks can often act as financial trustees. You can appoint a financial institution (bank) or the court will appoint it yourself if necessary.
- With any changes that occur in your life, such as a divorce or the addition of children, you should keep your will updated. Make sure your will is still legal and binding on any of these changes. There are many situations where a will is invalid. Talk to your lawyer about this. They will understand the rules and statutes in your area and can make the necessary changes to ensure the will remains up-to-date.
Warning
- If you and your spouse die without having time to write down the names of your children's guardians, the court will choose them. If family relatives apply as guardians, the court will choose among those who volunteer.
- In selecting, the court will consider the member of the relative who can best care for your children, based on their financial condition; the fact that the relative lives close to your children - so that they do not have to change their place of residence; whether the relative has any physical problems that could prevent him from caring for the child; whether the relative has any other children; and who the child wants as guardian (only applies if the child is 14 years old or older).
