Selecting a Guardian: Why Parents Need a Will

Brette McWhorter Sember attorney

By Brette McWhorter Sember Brette McWhorter Sember attorney

A will is the most important legal documents parents will ever sign.

It is easy to think of a will as something that only elderly people need to consider. As a parent, however, creating a will (which includes selecting a guardian) is one of the most important things you can do for your child.What is a Will?

A will is a binding document that distributes all of your assets and belongings after your death. Your will directs who gets what. You can leave your possessions and assets to anyone you want or to any charity you specify. Your will also names your executor. An executor is the person who will be in charge of making sure your assets are distributed as directed and all of your bills are paid. The executor will hire an attorney to represent the estate.

A will also contains your choice of a guardian for your children, should both parents die while the children are still minors. The guardian is the person with whom you want your children to live and be raised. The guardian will also have financial control over the assets the children own.

How Do I Choose an Executor?

You should choose an executor whom you feel is trustworthy and reasonable. You can choose anyone, but be aware that the person is not obligated to accept, so it is wise to discuss the person’s feelings about this responsibility in advance. You can choose your attorney as executor, but this choice poses certain legal difficulties so be sure to discuss it with him or her first.

What Happens if I Don’t Have a Will?

If you do not have a will, your assets are distributed to your family according to state law. A fairly complex order of distribution exists, but if you have a spouse and children, everything will go to them. If you and the other parent both pre-decease your children, the court will name a guardian for your children.

Why Should I Write a Will if Everything Goes to my Spouse and Kids?

Most people have specific wishes they want carried out. Some people prefer to leave certain special possessions to certain people. Others want to donate monies to charity. On occasion, people may feel very strongly that they do not want certain family members to inherit from them and wish to write them out of the will. As a parent, the most important reason to create a will is to name the guardian for your children.

How Do I Select a Guardian?

You should think about who you trust to raise your children and who has a good relationship with them already. Many people select a close family member or a very close friend. You can name two people, such as a married couple, as guardians for your children. It is important to discuss your choice with the potential guardian in advance. The person or people you name are not obligated to accept responsibility. If they do decline, the court then selects a guardian. You can name an alternate guardian should the first be unable or unavailable to accept the role.

It is always best to have an attorney draft your will when you are naming a guardian. While some of the kits are perfectly adequate, when you are dealing with something as important as a guardian for your children, you should be extra careful to ensure that it is done exactly right. There are other reasons to use an attorney — to set up a trust, to have conditions on your bequests and to do anything that is out of the ordinary.

How Much Does a Will Cost?

Rates vary based on the attorney’s experience, but in general a will ranges from $100 to $500 for a basic version that designates guardianship. The price goes up if special circumstances exist or if the estate planning is complicated. Many attorneys also prepare other documents (described below) as part of the entire package.Healthcare Proxies

A healthcare proxy is a document that states your wishes about what kind of treatment and life-sustaining equipment you authorize should you ever be in a coma or unable to communicate your wishes. The document also names the person you choose as your proxy (who can make decisions on your behalf if you are incapacitated). If you check into a hospital, the staff there may provide you with a very basic form. However, it is best to ask your attorney to draw one up so that you can specifically state your wishes in a way that mandates the manner in which medical personnel treat you.

Powers of Attorney

A power of attorney is a form that gives permission to someone else to handle your financial and business affairs. Power of attorney can take effect immediately or be drafted so that it takes effect only in specific circumstances, such as if you fall into a coma. Many attorneys recommend that you sign a power of attorney giving a close family member or friend the ability to act on your behalf if you are unable to do so. For example, if you and your spouse were both in a car accident and hospitalized in critical condition, your power of attorney would allow the person you selected to pay your household bills, deposit your checks and make sure your children are provided for as you specified.

Brette McWhorter Sember is a retired attorney, award-winning author, freelance writer, editor and teacher. This article originally ran as part of a printed series in 2007. Check with your own attorney before making any legal decisions.