DH and I are making plans to write a will, primarily for the custody and care of our daughter. We are still in discussion about who this will be, but I'd like the "heads up" when we see our attorney. What all things we will need to have decided upon? Right now our life insurance money is designated to Natalie in the event of both of our deaths. Should the beneficiary be the new guardians? What will happen to our home? Do we need to allocate possessions that are important to us (like jewelry) so that we can make sure that Natalie gets those things?

I hope these don't seem like silly questions but really we are clueless about this. Should we have a preliminary meeting with our attorney before actually writing the will?

I would appreciate any information/experiences you've had with this

By Crystal915 on Monday, January 2, 2006 - 11:15 pm:

We had wills prepared by JAG since we're military, but we designated a guardian, and in the event of our deaths the guardian gets the life insurance money. If you put the child as a beneficiary the money goes into trust for them, not much use until they are older. You can designate for a certain percent to go to the guardian, and the rest into trust, I believe, so there is money for college. If you want your possessions to go to Natalie, I think you can have it written out, or you can just assign someone you trust as executor of your estate, and allow them to give your items to her. HTH, we don't have TOO much experience with possessions and stuff, only who will care for the kids and get our life insurance.

By Ginny~moderator on Monday, January 2, 2006 - 11:49 pm:

Most probably the life insurance would go into a trust while Natalie is a minor, and you need to appoint a financial trustee as well as a guardian, instead of leaving the probate court guessing as to your intentions. Check with your lawyer, but you might be better off - in terms of having your intentions carried out - by having the insurance paid to your estate and a trust set up through your will/estate. That may mean inheritance tax on the insurance money, but may be safer. Yes, if you don't want your executor or the guardian selling the jewelry in the well-meaning belief that that would be best for Natalie, you need to allocate such possessions in your will - especially if you want to be sure that Natalie and not some other family member gets them.

I don't know that a preliminary meeting with your attorney is necessary. My experience is that the attorney will have a long list of questions and answering those questions will tell him what you want. You should have several pieces of information available, however - the names and addresses of the person(s) you want as executor, persons you want as guardians (and a secondary set of guardians just in case); similar identifying information for the person(s) you want as financial trustee, a list of your assets (house, car, jewelry, other valuables, insurance AND retirement accounts and any investment accounts), the name and address of your mortgage company, and maybe a list of present creditors. Remember that you have already named beneficiaries for your retirement accounts, and need to see if those accord with your present intentions. I am assuming you have talked with the people you want as guardians, to be sure they are willing. Be sure you and your husband agree ahead of time about how things should be allocated, so you don't spend time in the lawyer's office working out those details.

I often recommend that people think seriously about having a financial trustee (maybe the same person you name as executor) separate from the physical guardians of a minor, and that the conditions of the trust (i.e., what the money can be used for) be clearly set out. The criteria you use for selecting physical guardians for Natalie may not be the same criteria you would use for an executor or trustee. Remember, if both of you die before Natalie is 16, she will receive Social Security benefits, which will probably be paid to her guardian(s), and which should more than cover the day-to-day expenses of raising a child. So you may want to set up the trust so that while the SS benefits are available the trust monies are only used for extraordinary expenses (which you define). You may also want to have only the interest used for living expenses until she begins college, having the monies used primarily for college, and not having any unused remainder come to her until she is 21 or has finished college (whichever comes first or later - your choice). If you don't set up a trust and make your wishes clear in it, the insurance and other monies will go into a trust and the entire amount of the trust will be available to Natalie on her 18th birthday. That may be fine with you, but I don't know that I would want an 18 year old making decisions about the use of any large sum of money.

Your executor, and a secondary executor if the first one is not able to serve, should be (a) someone you trust implicitly with money and (b) someone who knows how to handle financial matters. There will be a lot of details, including probating the will, notifying all potential beneficiaries and insurance and retirement account companies, possibly notifying creditors (especially if there is insurance to cover the mortgage or any credit card accounts), paying the mortgage and utilities until your house is sold, filing a federal tax return for the estate, and, depending on where you live, a state tax return and an inheritance tax return. Bank accounts have to be closed, an estate bank account has to be opened, outstanding bills have to be paid, real estate and anything you don't leave to Natalie or others has to be sold or otherwise disposed of. It needs to be someone who can handle these things, and hopefully someone who will do it for love. I don't generally recommend that your lawyer be the executor, as the lawyer will be able to charge the estate his/her hourly rate or a flat percentage of the value of the estate (depending on where you live) for doing all of these tasks, and you may have a family member or loving friend who can and will do it without charge. Your executor can always consult a lawyer or accountant if necessary. But if you don't have someone else you trust both for honesty and ability to handle the details, by all means name the lawyer. In many states, a trustee or guardian for a minor has to file a financial report with the local probate court annually, but it is usually not a difficult document (and again, if you name the lawyer, the lawyer will have the right to charge fees). I also recommend that you NOT have a bank act as trustee - there are too many stories of banks not being very responsive to either the wishes of the persons who established the trust or the person who is the beneficiary of the trust, and horror stories about banks mismanaging trust accounts by investing in less than stellar financial performers or changing investments (and generating fees) too often. And your local bank might get taken over by some big national bank, and be less inclined to be responsive. Banks charge an annual percentage of the value of the trust, and with some banks that can be a high percentage. IMO, unless you are leaving a half million dollars or more, you don't need a financial manager or expert, just someone you trust who has some financial smarts and cares about Natalie's long-term welfare. You can also specify in the trust the ways in which the trust monies can be invested, i.e., sticking to CDs, certain kinds of money market accounts or stocks, and not others, etc. Better to be specific about your intentions about this also.

I've handled my brother's, father's and mother's estates, but I am a legal secretary and learned by handling the details of several estates on the job. But I think anyone who can do their own taxes can usually handle the paperwork and financial details of an estate. It just takes some time and attention to detail.

When you are done, have reviewed the drafts, and are sure your will and the trust documents are as you want them, you need to have at least a couple of "originals" - signed, witnessed and notarized copies of the will. Your lawyer should keep one, you should have a copy to keep with your important papers, and you should probably give a copy to your executor and the guardians, or at least a letter telling them the name and address of your lawyer. Your lawyer should also have a system where if s/he moves or closes the practice and turns files over to another attorney, you are notified. Be sure that you keep an updated list of your assets and their locations (bank, insurance company, retirement account, investment account) and creditors (mortgage company, credit cards, loans) with your wills.

Finally, be sure to talk with family members about the decisions you have made about guardianship and trustee and executor. Life will be much easier for the people you have chosen to trust if you have already had a discussion with your families and made sure they understand why you made the choices you made for each capacity. You certainly don't want to saddle the potential guardians with possible custody actions from other family members.

And don't think that just because you are writing your wills now, you'll never have to do it again. Wills should be evaluated and possible rewritten after any major life change.

By Karen~moderator on Tuesday, January 3, 2006 - 07:31 am:

I didn't read ALL of Ginny's post, though I *have* emailed it to my DH and saved it for later. I just want to mention that if you have something specific, such as jewelry or the like, that you want to go to Natalie or whomever, specify it!

My mom's will was incredibly simple because she had NOTHING, and it stated that her *estate* was to be divided equally among her three daughters. HOWEVER, she had certain pieces of china and things that had been in the family, that she had verbally promised to one or the other family member. Thankfully, she discussed that with me a few weeks before she died, and we were all aware of those things, so there was no problem. BUT *if* she HAD had anything of value, and it wasn't specifically stated, there *could* have potentially been a problem.

Thanks Ginny, for your usual invaluable infomation! It will be interesting to read all of it when I have some time later on today. DH's parents had most of their assets in trust, and he and his sister are in the process of finding out what is where. I'm sure your info will be helpful to us, as well.

By Reds9298 on Tuesday, January 3, 2006 - 01:55 pm:

WOW.....thank you!!!!!!! Ginny, I'm printing all of that to share with DH. I appreciate all of the detailed information and what we need to think about. This seems a little overwhelming right now, but I know it will be well worth it. Thank you all very much.

By Ginny~moderator on Tuesday, January 3, 2006 - 02:22 pm:

Better to be overwhelmed now than have someone else overwhelmed. The more you can do now to make things clear and as organized as possible, the better it will be at (heaven forbid) the time of need, and the better your daughter's rights and assets will be protected.

Unhappily, for anything really important, there are usually not simple answers. And, I do tend to go into detail - probably more than is needed, but I'm a belt-and-suspenders person.