The Facts About A Will
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What exactly is a will, and do I really need one?
The Estate Planning Attorney Answers:
If a couple is married with children and one spouse dies, in most cases, the surviving spouse takes care of the children. It is in situations such as single parenting, non-traditional (i.e. same sex) relationships or the simultaneous death of both parents (such as an auto accident) where having a will is crucial.
If your children are under 18, a guardian will be appointed to care for and assume legal responsibility for them. In most states, a court hearing is held and a guardian is appointed. If more than one person wants to be appointed, the court will decide, applying state law to determine who has priority. For example, if a couple dies in an auto accident, the grandparents or siblings from both the mother's and father's side may each want to be appointed guardian of the children. An ugly court battle may happen at the worst possible time when everybody needs to pull together for the children.
Nominating a guardian in your will, shows who you feel will best care for your children. Both the court and family members see who you want to be appointed guardian. A court hearing must still be held, but your wishes are known to all.
If you die without a will, your property will be distributed according to state law. Each state has its own laws about who gets what. If you have minor children, experts advise setting up a trust to control the disposition of assets. A trust can be set up as part of your will (a testamentary trust) or it can be set up during your life (an inter vivos trust, commonly known as a living trust).
Setting up a trust can help control when and how much of your estate is received by your children. For example, you can specify that your child will receive 1/3 of the estate when he/she is 18, 1/3 when he/she is 21, and the remainder at age 25. This is commonly done when the parents do not feel that the child will be mature enough at 18 to receive the entire estate.