Will / Guardianship of your LOs

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fudd8963's picture
Joined: 12/27/07
Posts: 1630
Will / Guardianship of your LOs

I had a converstaion last night with my 22 year old niece that I never expected to have. She is in the Marines and is getting deployed in March. I have posted about her before. She has two kids, both by different fathers and the youngest one's father is bi-polar (he's the one that attempted sucide). The father of the first child used to be in the Marines and now he is in the Army Reserves. We discussed who would get her kids if something were to happen to her. It's so scary to be having this conversation with my niece. She told me that she wanted to leave the kids with either me or my sister (not her mother, who is also my sister. She doesn't want to tie her down, and not her father because she HATED living with her step-mother so she couldn't do that to her kids). We are only 9 years apart, so we grew up more like sisters then niece/aunt. Heck, I am closer in age with her then I am with my oldest sister (her mother)! We talked about the pros and cons of both decisions. We came up with my other sister and her husband being legal guardians. The only reason is that I live 2 hours away from my family, and my sister lives 1 mile from my parents and close to my other sister (her mother, the grandmother of the children). So she would have more support then DH and I would. But what a scary converstation to be having with a 22 year old that is about to deploy to Afghanistan. And what an honor that she would want me to raise her children! I would take them in a heart beat!!!

It got me thinking, DH and I have discussed who would get our kids, but it's not in writing. Heck, I don't even think his family knows. Our girls would also go to my sister, the same one that would get my two great nephews. DH and I would also get my sisters two kids if something were to happen to them. But we really need to make a will and get it settled so that there is NO problems if something should happen.

Pammi, can any lawyer help you write a will, or is there a special type that we should contact?

RebeccaA'07's picture
Joined: 11/19/07
Posts: 1628

We have discussed it before, but it's such a hard conversation to have. I love my parents, but I had a very difficult childhood. Their values are different than ours; they spank, we don't...they have no concept of healthy eating, we do. I know they are capable of raising Kaylin but I am not sure how comfortable I am with how different our parenting skills are. Kaylin just adores my Mom though, and they are younger in their 40's. Wes's parents are older, they have a good 10+ years on my parents and they have health problems.

We really have to sit down and get it all laid out soon. My Aunt is a lawyer and she said she can help draw up our will.

gardenbug's picture
Joined: 03/12/07
Posts: 2025

Here in Canada you can write your own will and get it authorized by someone. There are books you can buy with guidelines for things to consider and include. We did this early on in our marriage. More recently, we did it with our lawyer who also worked out our real estate issues.

One of the important things I think is to ASK the other people and discuss the idea with them. First it is an honor, but frankly, over time, you begin to see the down side to some of it too. So really discuss things together! Consider the ages of the possible care givers, their finances, their values and so on. Also consider their geographic location: same country? Do they know your kids already? etc

When we were asked to be the legal guardian for a friend's son it involved a family with aunts who would fight for him but who had mental and other health issues and would not really be able to handle him.

And by the way, a will is a VERY IMPORTANT thing to have and update. DO IT NOW!

AK2663's picture
Joined: 09/03/08
Posts: 710

We need to do this too, esp with number two coming. we have told people that my sister, who has Jo kids at this point, would be the one to get them, but its not in writing. my other sister already has two of her own and a step son so she has her hands full. My parents are all older but would help my sister for sure. DH has no family so no resources there.

rachelperry1983's picture
Joined: 04/13/07
Posts: 809

DH and I just talked about this briefly the other day and of course his first comment was "Oh they will go to our parents". Umm not that easy, the MIL is divorced, has health issues and dates everything under the sun. My Dad lives up north and I wouldnt want my kids to go out of state. The kids love my mother, but I dont think that would work either. Both is sister could NEVER handle it. That leaves my 2 sister, with only 1 that I completly trust. I mentioned this to him and he immediately said no she was too young. She is young, 18 next month, but she's been married for over a year, graduated highschool/currently in college and her husband is in the Marines. She's the one person I trust with my kids and I know that she loves them and would do anything to care for them. It's just a difficult subject with DH, I don't think he sees the big picture.......and or he just doesnt want to think about it. I tried explaining that wasn't a option.....his father passed away at 41 from a massive heartattack and this is stuff that we need to agree on. Just the subject makes him uneasy though Sad

fudd8963's picture
Joined: 12/27/07
Posts: 1630

Luckily both DH and I agreeded easily that it would be my one sister. And her and her DH agreed to take them. My parent's are older then DH's by 6-8 years and have health problems. I am having a hard time letting DH's parent's take the girls to the park this coming weekend when they visit without us, so that's a definet no! They don't keep a close eye on them, and we have WAY different parenting ways then they do. I also wouldn't trust them with DH's sister, and I think it would be too much of a financial burden on them. The girls LOVE my sister, her DH and their kids and we have a lot of the same ways. So it was really a no brainer.

My sister talked with her DH just a few months ago that maybe they should switch guardianship from me/DH to his sister since they live in the same town and would have more family support. Her husband very quickly turned that idea down!!! He said he would rather their kids have to move 2 hours away then go to his sister.

zoe08's picture
Joined: 09/09/08
Posts: 665

If something were to happen to us, my kids would go to my sister. She is the one person I trust completely to take care of them and any finances we leave, I know will go towards taking care of our kids.

When I got my latest edition of Quicken, it came with a will making software. I have worked on it some, but have not finished it and printed and had witnesses sign or anything yet. I really should work on that with baby #2 coming in 10 weeks!

boilermaker's picture
Joined: 08/21/02
Posts: 1984

We updated our will when we went to Thailand-- and thought i didn't have it notarized, I gave a copy to my parents and put a copy in our safe and emailed a copy to my brother. Phew.

We've mulled over this many times, in the end we always come back to my parents. They are young enough to handle it, but I fret over "ruining" their retirement, but I know that they wouldn't want it any other way. It is complicated, too, by the fact that we have "so many"-- not very many want to take on 4 more kids....lol. My in-laws are all whack jobs, my brother is single and travels all of the time. We considered cousins, but, again, nobody really wants so many kids.....

So we have our will, which articulates all sorts of things, like who gets the kids and our property, our life insurance, etc. I'm a nut about life insurance so we insure ourselves out the wazoo (kind of a Dave Ramsey thing....) We did our wills through an online legal forms site, it was pretty cheap, and I feel better knowing that it is done.

kirsteng's picture
Joined: 10/19/02
Posts: 644

We've had wills since Kieren was a baby, updated a couple of times now to include the other two, changes of property etc. We also used a downloadable online form, then had it witnessed - making it legal in Canada.

We are leaving all 3 of ours to my best friend and his partner (a gay couple). We have absolutely no issues with their gay lifestyle, they're very stable, own a hotel/resort together and have been together for 13 years now. I love their values - love above everything... They laugh, they play, they read and love people... they are childlike but educated... I know our 3 would be raised to be wonderful, thoughtful and loving human beings. My best friend actually asked me if he and his partner could be our godparents when Mimi was a baby.

We are also insured up the wazoo, Wink , so part of our will stipulates that an annual amount be left for the caregivers for the upkeep of our kids until they are 18. To pay for daycare, babysitting, sports, clothing etc. Not that they couldn't afford it - they can easily - but I feel like it's just the right thing to do.

sarahsunshine's picture
Joined: 11/29/06
Posts: 1462

•If something happened to us, all hell would break loose. DSS would be claimed by his mom, she would sue DH’s estate for as much as she could get.

DD would likely go to DH’s brother and his wife who have just graduated to not having children (their son is 22 and in University), and they are hoping to retire in a couple years and be snowbirds… That would really wreck their plans to all of the sudden be parents of small children again! DS is not even thought about, and I have no idea what to do… The only reason for this is that that’s the agreement if something happens to both DSS’s parents (DSS is 12), DSS is to go stay with DH’s brother, so by default it would make sense that all the kids would go to the same relative.

Really we have to come up with a new plan. DH is the youngest of 6, and is in his 40s. All his siblings are done having small kids and don’t want to think about it. My brother would be a great parent, but he is doing so many other fascinating things that it just doesn’t make sense to ask him to change his life. I think that our best option is to have them go to my best friend, or to live with some of our friends. I guess DH and I had better talk about this!

Joined: 01/11/05
Posts: 326

I'll be honest, I have never explored the information provided by legal zoom or any of the DIY will companies. Obviously, I have just drafted my own will and other documents. In the strongest terms possible, I, however, would recommend that you go see a lawyer to draft your will. You can see a general practitioner like me or an estate planner. If you have a lot of assets and have complicated questions, you'll have no choice but to see an estate planner, which is not cheap. It is not, however, as expensive as you think to see a general practitioner. I would charge $150.00 to do reciprocating wills for spouses and $150.00 for accompanying documents (financial power of attorney, durable healthcare power of attorney, living will).

Thinking off the top of my head, the problem I have with will companies is if they take into account the specific jurisdiction in which you live. Or, do they just provide generalized information? For example, I am licensed to practice law in Ohio. In Ohio (and, also, in Illinois where I went to law school), the only requirements is that a will needs to be written and witnessed by two people. But, it should also state in writing that all prior wills are hereby revoked! The law in Ohio does not require a will to be notarized or written by an attorney. But, in some states, the law might require these things. For example, in Colorado where Audra lives, it sounds like it needs to be notarized. What if you had your will notarized, but not witnessed? It would be invalid in Ohio. So, legal zoom or whatever company advertising these will packets needs to advise you of the specific requirements of the jurisdiction in which you live.

Also, the wills I draft provide for present children and all future children. So, a will does not necessarily need to be redone because you have more children. These companies also need to advise you of your need for other related documents such as POAs and living wills. The legal language in these documents is very specific to the jurisdiction in which you live and may be invalid if the necessary legal language is not included.

Furthermore, there are such things as non-probate assets. This protects some of your assets from the bill collectors and it might be something you want to talk to an attorney about. In my state, life insurance is a non-probate asset. It does not get passed through your will. You need to name a beneficiary. (My 1st beneficiary of my life ins. policy is my husband. My second is my children). Your home could be titled as joint with rights and survivorship, and, therefore, it does not pass through probate. Your bank accounts could be held jointly with rights of survivorship and not pass through probate.

In my will, I have left everything to my husband should he survive me. If not, I have left everything to my children in trust. I have named my mother the trustee and she is to spend the money on their behalf and administer the trust until they are 25. I have also named my mother as guardian for my present and future children. My will, however, needs to be revoked because dh and I think my mom, as wonderful as she is, is getting too old to parent children. She will be 68 this year and my three children are overwhelming to her. My sisters are also wonderful, but each present their own problems because of crazy spouses and divorces. We think the best choice of guardians are my Dh's sister, Laura, and her husband but that would involve moving the children to Chicago, which we hate to do. If we both die, I would hate to rip them from everything that is familiar. So, we are undecided and have let things slide.

boilermaker's picture
Joined: 08/21/02
Posts: 1984

Good to know- Pammi. Thank you! This is probably one of those things we shouldn't do "on the cheap"--lol

We have living trusts, too, and a POA document.

Ours was specific to our state, which is actually pretty liberal about interpretations of wills (anything will do, so long as you can prove that the deceased directed it....)

And we do the same with all present and future children, and leave everything to the "surviving" spouse, and to the trustees (my parents) until the kids are 25.

So morbid to think about--but I feel better knowing we've planned. But maybe we should have one done with a lawyer, too.....got me thinking, friend!

Joined: 06/10/07
Posts: 1692

We need to get this in writing over here. The decision is made as to who would get the children but we need to set up an appt with a lawyer and square this away. Both dh and I lost a parent young so this was something very important to me to discuss early. We decided while I was preg with M and so far the same decision stands. If something changes healthwise with who the caretakers would be we'd have to revisit the discussion then.

Thanks for the reminder to get this on paper, Tara!