Becoming a parent is what may have motivated you to buckle down to the task of writing your will in the first place. If you are the parent of young children, your will is the perfect place to address some driving concerns you are likely to have if you die before they are grown. These concerns include:
Nolo’s Online Will lets you make these decisions separately. This gives you the option of placing the responsibilities in the hands of the same person or, if need be, naming different people. Here, you’ll be asked to identify your living children and name someone to care for them if you(and their other parent) cannot. Later in the program you’ll be able to name someone to take care of their property.
The program asks you whether or not you have any living children and, if you do, it asks you to name each of them. You are not required to leave property to your children, but it is important that you at least state each child’s name. If you don’t, it may not be clear whether you intentionally left a child out of your will, or whether the child was accidentally overlooked (called “pretermitted,” under the law). Children unintentionally omitted from your will—usually because you made your will before they were born—have a right to take a share of your estate.
When naming your children, you should include all living children born to you or legally adopted by you. However, if you are the parent of a child who has been legally adopted by a person other than your spouse or partner—or you have otherwise given up your legal parental rights—then you need not name that child in your will.
You should not name stepchildren you have not adopted, since they are not entitled by law to a share of your property when you die. The pretermitted heir rule does not apply to them. Also, Nolo’s Online Will offers a number of options that include your children as a group, and if you include stepchildren in the list and use one of these options, your will might contain provisions you did not intend.
However, you are free to leave your stepchildren as much property in your will as you wish. If you want to treat your children and stepchildren equally and not differentiate between them, when the program asks how you wish to leave your property, choose the option labeled “Leave it some other way.” To list your children, enter their full names in the sequence and format you want the names to appear in your will.
Do not name children who have died, as they cannot receive property from you. However, do name any children of those children in the Grandchildren section of the interview. If you don’t, those grandchildren could also be entitled to a portion of your property under the “omitted child” laws, discussed above. To name or honor a child who has predeceased you, use a separate letter. (This program can make one at the end of your will interview.)
If a child is conceived before your death but is born after you die, he or she will most likely be entitled to part of your estate even if your will doesn’t mention the child. But the law is now trying to address a new question posed by advancing medical technology: What happens if a child is conceived after the death of a parent? If sperm, eggs or embryos are preserved before the parent’s death, a child could be born years later. Individual states are taking different approaches to this matter. Some are giving posthumously conceived children the rights to inherit property and receive other benefits from their deceased parents. Others are refusing such rights. If you are curious about this issue or planning for a posthumously conceived child, you should consult a knowledgeable estate planning lawyer.
Some people are tempted to skimp on naming their children individually and want to fill in “all my children,” “my surviving children,” “my lawful heirs” or “my issue.” Don’t do it. That shorthand language is much more confusing than listing each child by name.
Similarly, naming your “unborn” children creates more uncertainty than simply naming your existing children and then updating your will when others are born. This program requires you to list each of your existing children by name. If you feel strongly about grouping them together or including children that haven’t yet been born, see a lawyer for help.
Nolo’s Online Will also asks you to enter your children’s dates of birth— month, day and year. The program will automatically compute their ages in years—an important consideration when you are asked to name a personal guardian and provide management for property you or others leave them.