Children, Guardianships and Wills: Estate Planning for Young Families

Consider this scenario: Both you and your spouse are young with two small children. You don't make much; in fact, you might be just scraping by.

You might have a small savings account -- very small. If you are fortunate enough to own a house or a condominium, you probably don't have much equity in the property -- at least, not yet.

Preparing an estate plan is probably the last thing on your mind. In fact, you might wonder: Why would I waste money preparing a will when I can’t even figure out how to send my kids to college in fifteen or so years? Obviously, you don't need to worry, right?

Wrong.

Actually, you are a prime candidate for estate planning. The fact that you are young and have young children is important, but not as an excuse. It’s a reason. Certainly in this hypothetical example you need wills at the very least -- especially because of those two young children.

During such times you should take stock of your situation to do everything possible to provide for your new family. It would be great for you to have a trust. It would also be nice if you were to engage in some form of financial or college planning.

But at the very least you should have wills.

The will is the cornerstone of any basic estate plan. Trusts are good. But if you cannot afford a trust, or if you do not believe that you have the property to place into a trust, consider wills. Preferably, you should consult with an attorney, who should have the knowledge to meet the many technical requirements in preparing these legal documents.

You might also want to consider preparing a holographic will (in other words, wills with all essential elements in your own handwriting). But, you should still seek the help of a qualified estate-planning attorney. There are technical requirements in the preparation of all estate planning documents, even in the preparation of handwritten, holographic wills.

Also, not all states recognize holographic wills.

Ideally, you should obtain attorney prepared wills. Usually, I would never recommend using software to prepare wills and trusts. However, if it's between having no will versus using a computer/internet-generated document, go for the computer-generated document! It is possibly better than nothing. Even so, an attorney prepared will is still a safer bet.

In California, there is another option: A statutory will, which is really nothing more than a witnessed will in a fill-in format available through the California State Bar Association (http://www.calbar.org). However, even these documents should be prepared with the help of an attorney. If you are not a resident of California you should never consider using these documents without ensuring that the provisions meet your states' technical requirements.

Only what the court believes counts! Everyone may know Aunt Millie's wishes -- after hearing her say it a million times, even the family pooch might know who gets the family china!

Everyone, that is, except for the court.

A will "speaks" at your death -- it is the authorized way of instructing the court on transferring your property. The will provides the necessary legal force behind instructions and "wishes." For example: Everyone might understand that Uncle Harry was to get the most expensive of Aunt Millies' china. But if the properly prepared will says otherwise, Uncle Harry is out of luck. The court only looks to the content of a properly drafted will for its guidance, and not what "everyone" knows -- including Fido.

As parents, YOU are responsible! But a main reason that young families should have wills is to nominate a guardian for their children (also called the "next friend" in certain states).

Obviously, no one wants to even think about his or her children as orphans. But what could be worse than your children being raised by an unstable, undesirable, or unsuitable family member? Another possibility might be even worse: That siblings could be split up and dispersed even across both sides of the family. Personally, I am horrified by the thought of my two children growing up not knowing each other.

While wills do not prevent bad results, they can clearly and definitively communicate parental wishes. In the final analysis, the preparation of a will is simply another part of discharging parental responsibility -- like feeding and clothing your children.

Disclaimer: The information in this article is not legal advice, and the use of it does not create an attorney-client relationship. Any liability that might arise from your use or reliance on this article or any links from this article is expressly disclaimed. This article is not to be acted upon as if it were legal advice, and is subject to change without notice, or may include obsolete or dated information, or information not relevant to your jurisdiction. If you require legal services, you should consult with an attorney.