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Writing out your will...

post #1 of 13
Thread Starter 

So, the time has come for the husband and I to make legal and binding our wishes with regards to our estate... pause for me to snicker at that... and our child in the event of our incapacitation or death.  Fun stuff.


And we have no idea where to start.  I'm not even sure I know what questions I should be asking y'all.  Mainly - do we hire a lawyer or legal assistance, or do we just muddle through on Legal Zoom?

Is what happens to our stuff a different document than what happens to our child(ren)?


Someone that knows what they're doing, please come tell me what to do.  Neither family is any help here.  We have no one, literally no one, we can ask.  So I'm asking here.

post #2 of 13
Household contents and guardianship of the children and any trusts you may set up for them can all be under the "last will and testament" documents. We went through a lawyer. i wanted mine to be pretty iron-clad.

Do remember to have notarized copies made and hand one to a trusted friend. Do not put the only copy in your safety deposit box at the bank where no one can get to it.
post #3 of 13

Well, the first question to ask is: do you have dependable/reasonable family who could inherit your kids? If you do then this is all a lot simpler.


What we did was go to an estate lawyer. Our house and all of our 401k/stock options were put into a family trust. The G____ family trust owns all our shit, not us. That keeps your stuff from going through nightmarish tax penalties when one or both of us die. If one person dies it is easy to name a second person to be the folks in charge of the trust. If we both die it reverts to our kids. There is an executer named until they turn 18.


Then we have separate documents that are not technically "legal" expressly stating our preferences for child custody in case we both die. We have a close friend who would hopefully adopt our kids. We both have severely abusive backgrounds. These documents are not legally binding but most judges care about the best interests of children. I was repeatedly raped by my family and I put that information in a legal document. My husband was beaten and humiliated almost daily and he put that information in a legal document. We all but pleaded with some future judge to not send our kids to our bio families.


That's pretty much all we can do. :(

post #4 of 13

OK, so we have more than one legal document, but here are the basics of what you need to know:


1.  Next of Kin follows this order (in most states): Spouse, Adult Child, Parent, Adult Sibling, Grandparent, Other Blood Relation

If you do not want those people making your decisions if you are incapacitated, you need Advanced Directives (to tell them what to do), and a Medical Power of Attourney, where you can list people in order to make decisions for you.  You can also make them out for your kids, so someone can make decisions for them if you are incapacitated (i.e. a family car wreck)


2.  When you die, Life insurance and 401K that have specified beneficiaries ARE NOT part of the estate and will be paid out once there is a death certificate.  All other assets will be frozen until there is an executor of the estate.


3.  Most states have a requirement for paying bills from the estate.  You usually have to post a notice in the paper and wait 90 days for any bills to be received.  All those bills must be paid out of the estate (until the estate is bankrupt), but no one can touch the life insurance or 401K.  Keep this in mind if you have a lot of debt.


4.  You can set up a financial trust for your children.  If they are citizens, they will receive SS checks until the turn 18, but how much is dependent on how much you paid into the system.  In your will, you have to list the people responsible for overseeing the financial trust.  These should be people who are good with money, and do not have to be the caregivers for your child.  In our case they are separate people.  It is really difficult to overrule a trust.  Having no control of the money will prevent some people for asking for custody.


5.  We have a separate document listing who are children should be cared for by, with reasons why.  We also have detailed objections to anyone who we think is a problem.  This is a request, but has to be upheld by a family court judge, so is not legally binding..

post #5 of 13
Thread Starter 

Some really awesome (and easy-to understand, thank you!) advice here, and I appreciate it.


It seems like a real-live legal professional is the way to go here;  now I have to convince my husband to pay for it. 

We do have family lined up to take the child(ren) if "the worst" happens.  But I'm reading that our wishes aren't iron-clad?  There is a distinct possibly that a custody battle for our children would ensue following "the worst".  Our intention is to give control of the money to the same individuals that will be caring for our offspring.  It's our best choice on both counts.  This won't automatically head off a legal battle over physical custody.  Is there anything we can do, aside from making our wishes known, to avoid this ugliness?

post #6 of 13

I am also interested if I can make it iron-clad who gets to custody of DD in the event of our death. We want our friends down here in San Diego to be God parents and take custody of DD vs. family, however I'm certain my mom would try to fight for custody which we do not want to happen. As far as money from Life Insurance, would it best to put it in a trust? So confusing!

post #7 of 13
Originally Posted by Kaydove View Post

I am also interested if I can make it iron-clad who gets to custody of DD in the event of our death. We want our friends down here in San Diego to be God parents and take custody of DD vs. family, however I'm certain my mom would try to fight for custody which we do not want to happen. As far as money from Life Insurance, would it best to put it in a trust? So confusing!

Our will contained guardians and "back up" guardians for our kids. We gave our guardians access to the money, to dole out as she sees fit to help the kids with their goals. With our wills are some letters written up by the dh and myself describing WHY we chose the non-family guardians we did. We tried to make it as strongly worded and specific as possible. I do have relatives that would try to get my kids just for the money. I think we are just barely upper middle class but we are doing a heck of lot better than some members of our family.
post #8 of 13

i think this is a category that is important enough and often fought over after the fact, that going for in person professional help is super important. the laws of each state are different and the issues can be many, we are also starting this now and its overwhelming.


the hard part for us right now is that we frankly do not have a clear idea of where and who we would want our kids raised by if we couldn't do it, there are a lot of ups and downs in the choice, and i think they term "godparent" gets given out way way to easy as a term of endearment.  it deeply saddens me that we dont have a family that we are this connected to, it speaks badly of the state of my close friendships and overly transient (military) lifestyle.


remember when it comes to money, it is fine and often good to give executorship of funds to a different person than guardianship of the kids, as long os both folks are folks you trust and they can work together, it gives a check and balance system.  the other line of thinking is that if you couldn't trust them with your money, you would never trust them with your kids, hopefully.  but some great parents are bad at money management and it may be better handled by a 3rd party if it is stuff that needs investing and legal handling when the kids grow up.

post #9 of 13
Thinking about this more...we never thought about who our money goes to in regards to guardianship of DD, however the family we picked just so happens to be better off than we are and could take on care of DD with absolutely no financial strain. So I think we'll have our money go directly to a college fund or a private school fund, if private school could serve her better than California public school (in the case of exceptional IQ or learning disabilities or both, which are likely because of her parents).

I'm specifically concerned my mom would fight for guardianship inspite of a will. I'll need to talk to her about this in person next time I see. Definitely food for thought.

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post #10 of 13

My kids stay with their Godmamas one weekend a month in hopes that a judge would look at a clear pattern of guardianship and pick the Godmamas over the out of state relatives who have met my four year old once and have never met my two year old.


*cross fingers*

post #11 of 13

For those of you that are "hoping" the courts will decide your children would go to those they visit a lot, versus relatives, SEE A LAWYER!!  A godparent or frequently seen anyone is not a legal guardian. 


Please, parent(s), if you want to make the decision as to where your children would go, in the event of your death(s), see a lawyer.  Wishes or the fact that someone is simply named as a godparent have nothing to do with the very real legalities of guardianship!


Different states have different laws regarding these types of things.  You need to see a lawyer and have your wishes put down in a way thet will be legally binding, no matter who you choose as guardians.


We dropped our original (and, legal) choice of guardians for ds.  Previously, he would have gone to one of my siblings.  But, dh and I realized they live too fast a lifestyle (not a bad lifestyle, but too much about work and rigid schedules).  Ds would not be happy with them.  Also, they are very mainstream about medical practices and would allow ds to be vaccinated (against our wishes and against ds's medical needs). 


So, we switched to very dear friends.  They know about our life choices (medical, educational, moral) and would continue to raise ds they same way.  We have given them a copy of our legal papers indicating our decision to name them as legal guardians.  Ds is happy with them and agrees that he would prefer to be under their care, should something happen to us..


We have a separate guardian for ds's financial assets (dh's cousin).  He's very conservative and excellent with money and we have complete trust in him.  Ds's (very large) inheritance would be safe and be there for his care and education.  He, too, has copies of our legal papers.


We each handwrote a letter explaining our decision, as well.


Our attorney assures us (with the laws to back it up), that my siblings would not gain custody of ds.  


Really, please see an attorney about these things.  It isn't enough to "hope" or trust an oral agreement or the religious term "godparent" or to keep your fingers crossed to safeguard your child(ren).  Make your desires legally binding!!!

Edited by grahamsmom98 - 10/15/12 at 7:58am
post #12 of 13
I forget who it is but we have an MDC mom that grew up in foster care separated from her siblings because her parents had not made a will. She carried a lot of resentment into her adult life over this.

I had notarized letters that we left for the babysitters in the case the worst should happen while we were out on a date. The letters indicated which neighbors could be trusted to keep the children until their guardian arrived on the scene to claim them. No offense to MDC moms who foster, but I did not want my kids to spend even ONE night in the foster care system.
post #13 of 13
I have everything done as legally as possible. Never the less it is important to build a relationship.
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