Estate Planning for Procrastinators, Part 2

“The most common excuse parents give for putting off writing a will is trying to decide who will raise the children.” – Ric Edelman.

An earlier post discussed some of the psychological and practical reasons why people put off writing a will.  For young parents, the biggest challenge, and the main reason for procrastinating and not writing a will, may be the task of choosing a guardian or guardians for their children.

Since it is such a prevalent challenge, you can find many articles on the Internet addressing the issue of choosing a guardian.  Actually if you enter “choosing a guardian” in Google, your search will yield 4.7 million hits.  One article I found particularly useful is Why Parents Procrastinate in Writing Their Will . . . and Nine Questions to Help You Overcome It  from Ric Edelman’s newsletter Inside Personal Finance.

The bottom line is that since “deciding on a guardian and how to provide for their kids’ financial needs is difficult …a lot of parents do the worst thing of all: nothing. This means the decision, if one becomes necessary, will be made by a judge or county official.”

To avoid this outcome, that article sets out a procedure for young parents to follow.

“Sit down with pen and paper and answer the following questions, providing as much detail as possible.   If you’re deciding as a couple, answer the questions separately and then compare your answers.  Some of the questions will take some thought, so you might not be able to answer them right away.  That’s okay.  Answer what you can at the first sitting and set a deadline to finish the rest.”

There is not space to repeat the 9 questions, which are quite good, so please read the entire article.  I hope that mulling over this issue will empower you to move forward.  Consulting an experienced estate planning attorney should be high on your agenda of things to do before the end of the year, if not sooner.

Although the article is recommended as a good place to start, here are some additional thoughts from two other articles.

From Guardianship for Your Children 

If you’re having a hard time choosing someone, take some time to talk with the person you’re considering. One or more of your candidates may not be willing or able to accept the responsibility, or their feelings about acting as guardian may help you decide.

If You and the Other Parent Can’t Agree

When you and your child’s other parent make your wills, you should name the same person as personal guardian. If you don’t agree on whom to name, there could be a court fight if both of you die while the child is still a minor. Faced with conflicting wishes, a judge would have to make a choice based on the evidence of what’s in the best interests of your child.

Writing a Letter of Explanation

Leaving a written explanation may be important if you think that a judge could have reason to question your choice for personal guardian.

Judges are required to act in the child’s best interests, so in your letter explain why your choice is best for your child.

If Your Child’s Other Parent Is Your Same-Sex Partner

If you coparent your children with a same-sex partner, you will probably want to name your partner as the personal guardian of your children.  Because some courts will be unfamiliar with your family structure, consider writing a letter to fully explain to the court why it’s important for your partner to be your children’s personal guardian.

From The Importance of Writing a Will

After you’ve made the decision, choose an alternate guardian to include in your will.  He or she will take care of your child in the event that your primary choice is unable to do the job.

If you have a life insurance policy, 401k, or IRA account, be aware that … the beneficiary forms accompanying these documents overrule wills.  The funds in these accounts will be distributed to whomever you name—regardless of whom you specify in your will.  You’ll need to double check the names on these accounts and make changes to match the names with those you dictate in your will.

Conclusion

Why Parents Procrastinate in Writing Their Will . . . and Nine Questions to Help You Overcome It concludes with

“Above all, remember: If you fail to make a choice, you are leaving the decision up to the probate court, where all of the people you considered above (and possibly others) will fight over the decision, with the judge acting as referee.  It’s a difficult task for a judge, since he or she has never met you and will have no idea what you would have wanted.

If the thought of making a choice sends you into a panic, remember that you can always change your mind.  I’ve seen clients change their minds every other year, as their family circumstances change.  If your parents seem the best option today, pick them.  In a few years, when they’re older or have become ill, you can change your mind. Or maybe your choice marries someone you don’t like, or suffers a setback of some kind.  No problem.  Just base your decision on the facts as they are today, and rest assured that as times change and people change, your mind can change, as well.”