Less than half of all Americans have a will, and the number drops even more for moms and dads, yet it's the one legal document every parent should have. Here's why.
Before our son was born, my husband and I decorated the nursery, assembled the crib and bought what we thought were enough diapers for a lifetime. We had planned every detail of the baby's room—down to the barnyard-theme hamper—but we hadn't planned for the future. Like most Americans, we didn't have wills.
Less than half of Americans—41 percent—have a will, according to a nationwide survey of 1,000 adults done for FindLaw, a legal-information website. Only 34 percent of parents have wills, and that number drops to just 11 percent of people between the ages of 18 and 34. Denial is largely to blame: Young people think they're going to live forever.
Yet every parent should have a will. "The costs of not having one can be high, and they're not just monetary," says Todd L. Janower, an estate-planning attorney in Chicago. The most compelling reason to have a will is to be able to nominate a guardian for your children in the event of your death. Courts usually award custody to the surviving parent, but parents—especially single ones—must consider what will happen if their children are orphaned.
Even though you will probably agonize over whom to name, don't assume your choice is binding; legally, it's just a suggestion to the court in most states. But while the court will make the final decision, it's imperative that you make your preference known. "Without it, the court won't know about your decision, and your dreaded in-laws may come in and take your children and raise them in a way you never wanted them raised," says Dennis Belcher, chairman-elect of the American Bar Association's Real Property, Probate and Trust Law section.
Another reason to have a will: If you die intestate—without one—state laws dictate how your property will be distributed. Most people assume their spouse will inherit the entire estate, even if no will exists. Instead, many states distribute part of an estate to the surviving spouse and divide the rest among the children. "But the surviving spouse may need those assets to maintain his or her lifestyle," says Linda S. Whitton, a law professor at Valparaiso University in Valparaiso, Ind. Even if you want half of your assets to go to your children, minors can't legally inherit money until they turn 18 (or 21 in some states). Meanwhile, the guardian—even if it is the spouse—must petition the court to use the funds for the child's support.
How to write a will
To draw up a will, you start by listing your assets and liabilities. Assets include real property such as houses and cars, as well as bank and retirement accounts, stocks, bonds and life insurance. Liabilities are debts, including mortgages, loans and credit-card balances.
In addition to naming a guardian for your child, you'll need to appoint an executor, a trusted person who will administer your estate according to the terms of your will. You'll also need to name the beneficiaries who will inherit assets or personal possessions from your estate. You should also consider establishing a trust for your minor children so that an adult can manage their inheritance.
Most people choose to leave all of their assets to their spouse, with their children inheriting any remaining assets after the spouse's death, Belcher says. Jointly held assets, such as houses or bank accounts owned with another person, transfer directly to the co-owner. The same is true for beneficiary accounts, such as life insurance or retirement accounts. "But people need a will even if everything is jointly owned," Belcher says; it can help speed and ensure a seamless transfer of your property and assets.
If a secret fear of lawyers—and legal fees—is the only thing holding you back, you can write a will using online legal-document services or do-it-yourself software programs. The best websites have paralegals—people trained to assist lawyers but not licensed to practice law—review the information you provide, although they do not offer legal advice. This staffing gives websites an advantage over software programs. But do consult a lawyer if your assets, including your home, exceed $1 million; if you plan to disinherit anyone; or if you need legal advice.
I secretly worried that writing a will would tempt fate. Ironically, I stopped worrying once I knew that our legal matters were in order. It gave me the peace of mind I needed to concentrate on midnight feedings and midday cuddles with our new baby.