Disclaimer: This post has been written for educational purposes only by Park Slope Parents and was not meant to be legal advice and should not be construed as legal advice or be relied upon. The post may contain errors, inaccuracies and/or omissions. You should always consult an attorney admitted to practice in your jurisdiction for specific advice.
As the original poster summarized, "hi everyone, thanks so much for those who got back to me on my question about preparing a will post-baby. Sounds like getting a lawyer is the best."
Responses:
"As an attorney, I would HIGHLY suggest that you use an attorney for this. (I promise I am not fishing for business) There are mutliple reasons for doing so: Legalzoom and off line templates may be fine for getting started--but there is no guarantees with these boilerplates (believe me, I have actually seen serious consequences from this.) In the event there is ever a question as to validity with a will prepared by an attorney with his client, in the event you are dead, your attorney can provide clarification of the issue acceptable for any court-- this won't work with LegalZoom.
My suggestion (if money is the issue, and it sounds like it is) is to use a template from online and fill in all of your information-- then ask an attorney to review what you have done. This will mean the attorney will spend less time on it (as they charge by the hour). You do all the ground work, and then let them address any holes in your work and revise accordingly-- along with answer any outstanding questions you may have. When you go to the attorney to bring them your draft will, ask them for a quote up front (i.e. how much will you charge me to review and update my will?) Usually you can bargain a flat rate (instead of hourly). Figure out how much you are willing to spend first, and then go from there. The consequences of drafting an invalid will are serious--- instead of your child receiving everything part of your estate could end up with the State.
Moreover, if you die while your child is still a minor, and your will does not adquately address guardianship in the manner prescribed by law, you could leave your child in limbo. Finally, do yourself and your child a big
favor-- make sure your will has a "living will" provision which addresses how to deal with a situation where you or your husband (or both of you) are on life support."
"It is a good idea to have a will when you have a baby. We used Legal Zoom when we had our first but when we had our second and then went to an attorney, he pointed out a whole bunch of flaws with the Legal Zoom document. (for example, it didn't say that the Will should be fit for current and subsequent children, which is apparently standard language.) So I think if you're going to do it, you should go to an attorney. We used a family member as our lawyer, so I'm afraid I don't have any recommendations, but I bet PSP would be a good source for finding someone not too expensive."
"I forwarded the responses to my husband, a corporate lawyer, and here's what he said:
If you are thinking about using an online will, that probably means that your estate isn't particularly complicated. That is a good thing and also why, when we do our wills this weekend (thanks for the reminder!) we are also going to use a lightly massaged version of an online will. With a basic Last Will and Testament form that you can get online or buy at Barnes & Noble, you can create a document for under $10. (These, for example, almost certainly cover our needs:
http://www.uslegalforms.com/wills/new-york-will-forms.htm )
You don't need a lawyer to create a binding Will; you need a document signed by the testator, two signing witnesses and a Notary to witness the signatures. You don't even actually need a notary but it makes things easier later because the Notary substitutes for the need to have the witnesses produce affidavits for probate.
Creating a trust as suggested by "xxxxx" is not merely a way of managing your assets after your death, it creates a quasi-corporation that owns them in life. While I wish divorce on nobody, creating of a trust for assets now would certainly complicate things in the event of a divorce. The establishment and dissolution of a trust are not nearly as simple or inexpensive as signing a will. The idea that the estate will be hit by a false claim that depletes the assets is probably the product of fear mongering books or too many soap opera plot twists. There are tax advantages to trusts for certain estates (the Bush administration's obsession with the "death tax" considerably lowered estate taxes) but if you are thinking about
going the trust route, you definitely need to consult your own lawyer, not PSP. Any legitimate debts accrued by the trust on behalf of its beneficiaries would have to be paid upon dissolution, just as an estate has to satisfy legitimate creditors before making distributions to the heirs.
While you are doing a will, I suggest also doing a Living Will/Health Care Proxy. http://www.ilrg.com/forms/states/ny-livingwill.html"
Advice on Legal Guardianship:
"Both our first and second tier legal guardians are not family members (though, really, aren't good friends the family you get to choose? :-)) and our lawyer didn't bat an eye. We did ask our friends if they'd be ok with it, which they were, but I've actually heard that it might not be the best idea to mention it as the chances of it becoming necessary are rare and it might make people uncomfortable in weird family political ways. My older daughter has asked who would take care of her if both her parents die, it felt good to be able to answer honestly. And then she got excited about the prospect of living with the other family, ha!
"This is a tough process, but such an important one. My alternate guardian for my son is a non-family member, and when my sister and I were children, my parents' guardian for us if something happened was a non-family member. In my view, you should speak to whoever you want to serve as guardian, family or not, to be sure they are comfortable. And not to take it personally if they're not - I think it takes a lot of self-awareness and concern for the best interests of a child to say no to such a request if someone knows they couldn't handle it. What you are not obligated to do (and I would not advise doing) is to talk to anyone other than your chosen guardian about it. You don't owe anyone an explanation for your choice, and it can just open up a bunch of unnecessary hurt feelings.
The things I considered in making my choice were: continued access to my extended family, so someone geographically close; someone who would love and support my son through loss; someone who shares my values, if not my exact parenting style; but mostly just that he would be cared for.
I also highly recommend a good amount of life insurance, if you don't already have it. (The guideline I was given when doing my will was 10x salary). Part of what makes this choice easier (and makes it easier for the potential guardian) is if the financial needs of your child will be taken care of.
With respect to family in another country, I strongly recommend against appointing them as guardian. You risk becoming subject to the laws of that country in administering the guardianship, and that your child, who has grown up here, will wind up in a completely unfamiliar place after experiencing a devastating loss. You can condition your guardianship that they must take the child to visit the other family x times per year (again, this is where leaving a good amount of insurance money helps), or other ways of making sure the connection isn't lost."
"One more thing to consider is that you need to pick a guardian and a person to control your child's assets/trust, and that doesn't have to be the same person. We chose the same person because it made the most sense for us, but some people have complicated family relationships and may want different people having custody and control of the money. Just one more thing to think about."
More on PSP
PSP Member Reviews for Lawyers specializing in Estate/ Wills
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