You may have heard that it is especially important to write a will if you have children. Here's why: If you die without a will, a court will use state law to make many or most decisions about what happens to your property and about who will take care of your kids. Making a will is your opportunity to make a plan that protects your children and the property that you leave to them.
- A will gives you a say about who will care for your children. If you die and your children do not have another capable parent to take care of them, a court will appoint a personal guardian to raise them. In figuring out who to name for this job, the court will focus on the best interests of the children, and it will usually ask for opinions of people who know the kids. Because you're dead in this scenario, you won't be able to weigh in, but you can use your will to be clear who you think should be named—and you can even provide your reasoning. Your opinion will be especially important if there are differing opinions within your family about who your kids' guardians should be. Times will be difficult enough with you gone; a family feud would only make things worse for your kids. Your documented preference will make it easier for the court to make a decision and for your family to accept it.
- A will allows you to name a guardian for your children's finances. If you die, you will also need someone to look after your children's finances. You can name the same person that you named to be the children's personal guardian, or you can choose someone different. However, unlike your choice for personal guardian, the court will usually just accept your choice for property guardian unless the person you name is unavailable or obviously incompetent. Your children's property guardian will look after any of their property that isn't already managed in another way. In other words, the property guardian won't manage property that was left to your children in a trust or custodianship.
- You can use your will to set up long-term management for your children's property. Separate from naming someone to take care of any unmanaged property, you can also use your will to set up property management for the property you leave to your children. You can use your will to name a trusted adult to manage the property until the children reach a certain age. If you don't set up property management that lasts into their young adulthood, your children will receive their inheritance from you when they legally become adults – age 18 in most states.
- You can use your will to decide who will wrap up your estate. The person who serves as executor will have a big job after you die. He or she will manage the court process for wrapping up your estate and will have to make many decisions—big and small—affecting your children's inheritance. If you have an opinion about who would be best for this job, then you should name that person in your will. If you don't, the court will appoint someone and it will have to make an educated guess about who is the best choice. Even if you aren't worried that the court would make a bad choice, using your will to state your preferences will minimize family conflict over this issue, allowing the focus to remain on taking care of your kids.
- A will lets you decide who should get what—and who should get nothing. If you want your children to split your property evenly, then you may not be too concerned about using a will to decide who gets what. But your state's one-size-fits all approach to divvying up property to family members may not be what you want, and many small choices will be left to your executor. It is almost always better to use a will to make your wishes clear. Here are some things to keep in mind: If you're married, your spouse and your children will split your property using a state-specific formula. The children will split the children's portion evenly. Your executor will have to make judgment calls about how to divide property that can't actually be divided (cars, animals, furniture), including decisions about which items should be sold. So if you have any items that you want to leave to specific children, or if you want one child to get more than another, you must make a will to make your plan known—otherwise your executor will be obligated to make an even split as judiciously as possible. Also, if you want to leave any of your children nothing, you must make that clear in your will, otherwise that child may be able to claim a portion of your estate.
Keep in mind that a will alone may not provide enough planning to cover your needs and the needs of your family. For example, if you have a substantial estate, you may want to save your family time and money by avoiding probate. Or, if you have a child with special needs, you may want to set up a special needs trust. You might also consider buying life insurance to cover any big ticket expenses. And most people should make health care directives and powers of attorney—these will allow your loved ones to make informed decisions about your health care or finances if you cannot make those decisions yourself.
You can much more information about wills, trust, powers of attorney, dying intestate, and avoiding probate in the Estate Planning section of Nolo.com.