Generally speaking, when a custodial parent dies, his or her minor children will go to live with their other (non-custodial) parent, absent some special agreement or litigation. Likewise, when you die without a will and without a spouse, your net worth is typically divided among your children who are still living on the date of your death. Thus your “ex” may not only end up raising your minor children but also managing their assets until they turn 18. For a lot of my clients, that is not an acceptable outcome.
If you want to have more input in who raises your children and who manages their money in the event of your death, you should think about preparing a will as soon as possible. Your will should explain your preferences for their care and it should set up a trust when you die to hold their inheritance (which may be primarily life insurance proceeds), at least while they are minors. Wills can be complicated multi-generational tax planning devices, or they can be a very simple statement of your wishes. If you have a sizable estate, or if you expect the other parent to “fight” for custody of the children, you should definitely take the time and spend the money to get your documents carefully drawn up by competent attorneys. A strategically planned will can help your first choice custodian have the best chance of “winning” that second custody trial, or better yet, settling the issue out of court. It can contain incentives for your children to attend college or keep in touch with grandparents and other family members. Even if you do not expect a custody dispute and your estate is very small, you can still take quick, inexpensive steps to protect your children’s inheritance.
Many states have rules giving some portion of your estate to your spouse even if your will says otherwise. However, once your divorce is final, your ex will no longer be entitled to “elect against your will”. Make no mistake, the best plan is always to get the advice of an experienced estate planning lawyer. There are so many variables that can’t be covered in an article like this, including differences between states, special requirements in your divorce decree, and unique circumstances in every family. But even while the divorce is pending, any will may be better than no will at all, if your goal is to reduce or eliminate what your estranged spouse inherits from you. So if you absolutely can’t afford the assistance of a lawyer, you may as well try to draft your own will and hope it works.
In many states the simplest will is “holographic”, that is traditionally a document written on plain white paper, all in your own handwriting, with or without witnesses. Anyone can write a holographic will, and while it certainly won’t cover every contingency, holographic wills have been upheld when challenged in court in many states. Best of all, if you live in a state that recognizes holographic wills, you can do this NOW and you can do it for FREE. Holographic wills need not follow any special formula and they can say whatever you want in whatever language you choose. You can write a holographic will as soon as you separate from your spouse, even while you are still married. You can write your holographic will now and replace it as soon as you are able with a more comprehensive will.
When it comes to wills, there can be many formalities that you must follow. Check your local state rules for details. InCalifornia, for example, a hand written will that is signed by the writer can be valid even without witnesses. InOregon, however, your signature must be witnessed by two adults who are both in the room together watching you sign. Generally, your witnesses should not also be beneficiaries of your will. If you do prepare your own will, I recommend you put the original in a safe deposit box, or leave it with someone you absolutely trust who will know right away if something happens to you. (You don’t want your ex to find the original will in your desk, read it, and immediately burn it!)
If your net estate, including real estate, retirement plans and insurance proceeds, is approaching or exceeds $1,000,000, you should see a lawyer about saving state and federal estate and gift taxes. Otherwise, you may want all your assets sold and the net proceeds placed in a trust that is established after your death. A trustee would be appointed to manage that money according to your directions. That trustee would have a lot of responsibility on his/her shoulders.
Whether you decide to hand-write your will on plain white paper or hire competent, experienced lawyers to help you draft a binding and comprehensive estate plan to provide for your heirs, here are some questions you should think about and be prepared to answer before you start:
- If I were to die while my children are still minors, who would be best suited to finish raising them? Who would be my second choice? If I choose a couple, what if they get divorced or one of them is no longer willing or able? What are their full legal names, current addresses and phone numbers?
- Would my children do better staying in their same school district? In their same house?
- Are there step-siblings, step-parents, grandparents or other close family and friends who would tend to lose touch with them if my children move away to live with my ex or my preferred guardian?
- Is it important to me that my children be raised with specific cultural and/or religious training?
- Do any of my children have special needs? If so, might they be eligible for social security and/or other government assistance?
- Who could I count on to manage my children’s money, including insurance proceeds, when I’m gone? If that person isn’t willing or able to help, who else could I nominate? (This will be your children’s trustee. Think of someone who is knowledgeable about investing and accounting for money, someone trustworthy and young enough to take care of this important job many years from now when your children are in college. My personal preference is to choose someone OTHER THAN the caregiver to manage the child’s money. You can also hire a bank or professional trustee, but they will have to be paid out of your children’s funds.)
- What do I own, what is it worth, and what do I owe to banks, credit cards and others?
- Do I have heirlooms that should stay in the family or go to particular people in my life?
- Should my estate be divided equally between my children no matter what? Or should all the money be available for my trustee to spend on any one child in case of an emergency?
- Do I expect my children to inherit from any other family members? If so, how much?
- Do I want my trustee to pay some or all of my children’s college expenses if possible?
- Do I want to reward my children for certain achievements, such as earning a bachelor’s degree? Getting married?
- Do I want my children to receive whatever remains of their inheritance on their 18th birthday? Or should they receive the balance of their trust fund in phases at, say, age 25, 30 and 35?
There are many other considerations in drafting a will, depending upon your particular goals and the nature and size of your estate. If you can afford it, you should really consult a qualified attorney in your state. Especially during and after a divorce, if your ex is not financially responsible or emotionally stable, I recommend you take the time to think about and write down your plans and preferences for your children. Lock the original away some place safe. Leave a photocopy with your other important papers, along with a list of your major assets and instructions about who to contact to get a hold of the original document.
And please remember to change the beneficiaries to your investment accounts, retirement plans, IRAs, annuities and insurance policies!