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Feature/General
Do It For The Ones You Love
By Alec R. Hodson
June 2005
As any mother or father will tell you, the joy and wonder of parenthood
come with their own sets of responsibilities: formula to mix, diapers
to change, homework to supervise, sports activities to coach, boo-boos
to help heal. And yet, as important as these tasks are, there remains
one absolutely essential task that most parents of young children
often fail to complete and that can have significant and permanent
implications for the development, happiness and protection of their
most precious assets, their children: to prepare a Last Will and
Testament.
Despite its importance, even the best parents often fail to have
a Will drafted. It’s an unfortunate but understandable oversight.
Most parents have very little free time as they juggle their busy
lives, caring for little ones, tending to careers, and trying to
find time for each other. Even those who know they should have
a Will tell themselves that they will get to it sometime soon.
In addition, most parents are on a tight financial budget, and
just trying to make ends meet each month leaves little money left
to pay for a Will . Some may even jokingly ask themselves, why
do we need a Will to direct who will inherit our debt? Most importantly,
the joy, vitality and energy that children bring into parents’ lives
provide them a state of mind where thinking about their own mortality
seems untimely, depressing, and uncomfortable.
As unpleasant a task as it may seem, preparing a Will is something
we do not for ourselves, but rather for those we leave behind.
Setting aside the small amount of time it takes to prepare a Will
and confronting now some important decisions about our children’s
futures are two of the most important things that we can do for
them. Losing a parent is a difficult experience at any age, and
ensuring that your children will be taken care of emotionally,
physically and financially in the event of your and your spouse’s
death is very important. The arrangements you make now will both
protect your children and, ultimately, bring a sense of relief
to you and your spouse, knowing that your children will be well
cared for should the unthinkable occur.
Before preparing a Will, decisions about who will serve as your
children’s Guardian, Trustee, and Executor are the first
and most important considerations every parent needs to make.
Guardian
The first, and often most difficult, thing you will need
to do is select a Guardian. This person, or persons, will physically
take custody of your children and care for them if something were
to happen to you and your spouse. If you fail to do this, then
the State will be forced to select that person on behalf of your
children. Courts do their best, but they do not know your family
like you do. With a Will, you are able to choose which relatives
you would be most comfortable entrusting with your children.
Yes, this is a tough decision. Grandparents, aunts, uncles, older
adult siblings, and family friends, are often good candidates for
Guardian. Avoid conducting a popularity contest, and try not to
name someone just to honor them or because you fear that their
feelings would be hurt if they are not named. This is a disservice
to your children. You should also select a back-up Guardian, in
the event that your first choice cannot serve. The person or couple
you name will be taking on a great responsibility. You may want
to consider some of the following traits of a prospective individual
or individuals when considering a guardian:
- Your confidence in the Prospective Guardian(s);
- The physical
ability of the Prospective Guardian(s) to care for children;
- Special time constraints that the Prospective Guardian(s) may
have, such as work related travel;
- Religious and moral compatibility with your values;
- Other children
that the Prospective Guardian(s) may have, their ages and potential
compatibility with your kids;
- The financial resources that you would have to provide for your
children after your death; and
- The financial resources and responsibility of the Prospective
Guardian(s).
Trustee
Your next step in preparing a Will is to select a Trustee
for your children. The Trustee is a person or persons whose job
is
to hold funds left to your children from your estate for their
benefit and care and to protect these funds until your children
are old enough to legally transfer to them what money remains when
they reach maturity. Often, the Trustee you select will be the
same individual(s) you name as Guardian, but you may select another
person. Also, you may choose to name a bank’s trust department
as Trustee. Some parents find that the individual(s) that they
would most trust to care for their children are not the same individuals(s)
that they would trust with the money or that they do not want to
burden the Guardian with additional financial management responsibilities.
Executor
Finally, you need to select an Executor to carry out the
directions you have set forth in your Will, complete the necessary
paperwork
following your death and complete the transfer of your estate.
The Guardian, Trustee and Executor all will have to work together
as a group to carry out your wishes. Keep this in mind when selecting
these parties. To make their jobs easier, you may want to leave
specific directions in your Will detailing such issues as how you
want your children raised, including issues such as faith, education,
and other important factors. You also may want to leave specific
directions regarding your funeral or other last instructions, such
as making a specific gift to other people or institutions such
as charities.
Remember, the State of Georgia has strict preparation and execution
guidelines for the preparation and form of a Will, and simply writing
your wishes on a piece of paper and signing it is not legally sufficient
in Georgia and may not be legally recognized when you die.
Living Will
We have all been following the recent events in the
news regarding the stress and confusion that can be created when
someone becomes
unable to make medical decisions for themselves. At the same time
you have your Will prepared, you also may want to consider having
a separate, related document prepared, often referred to as a Living
Will or a Durable Power Attorney for Healthcare, which allows you
to give specific directions in the event you become unable to make
life or death medical decisions for yourself, and allows you to
appoint a person or persons to make these decisions for you.
Do It Today
Given the importance of what’s at stake for your children’s
futures, don’t wait. Make plans to have your Will prepared
today. You’ll take comfort in knowing that once you finally
get through the difficult process of discussing and preparing your
Will, you can place it in a safe place and not worry about those
tough issues anymore. Furthermore, and most importantly, you will
have the knowledge that your children will be protected, and you
can go on with your busy life and the real work and joy of raising
and loving your kids!
Should I hire a lawyer to prepare my will?
Wills prepared by attorneys are much more expensive than the Do-It-Yourself variety.
Georgia Law does not require that you use a lawyer to draft and execute your
Will, and many people feel very comfortable doing some extra homework and drafting
and executing their own wills. Depending on the complexity of your will, based
on your individual circumstances, you may be able draft your own Will at a
significant savings over the cost of using an attorney. Helpful resources are
available at your local library, on the internet and at most large book sellers,
such as Barnes and Noble or Borders. You will, however, want to be very careful
that you are using a reputable resource which is tailored to Wills specific
to your state, because every state has different requirements for a valid Will.
For instance, in Georgia, two valid witnesses are required to sign your Will,
but in Vermont, three are needed. Therefore, someone in Vermont would have
an invalid Will, even if it would have been a valid Will in Georgia.
An attorney can assist you in making sure that all of the issues that need to
be addressed in your Will are done so properly. In addition, he or she can check
to ensure that everything is drafted so as to prevent increasing the cost and
time needed to Probate your estate after you die, delaying the transfer of your
property to your heirs according to your wishes. In addition, an attorney will
ensure that executors, trustees or guardians of your Will are properly named
and that the Will is fully valid and enforceable after your death. Sadly, many
people create Wills themselves that are legally invalid and, sadly, never even
know it. When they die and the Will is located, only then is it known that the
Will was not enforceable. If the Will you draft yourself turns out to be invalid,
then it is as if you never had a Will at all. While the cost of having a Will
professionally drafted depends on the size and complexity of your estate, the
customary fee rates for lawyers in your area, your lawyer's experience, and other
factors, often the cost of a having a simple Will professionally prepared is
less than a summertime monthly electric bill here in Northeast Georgia! Taking
into consideration what is at stake, this piece of mind be well worth the investment. |
Alec R. Hodson is an attorney in Athens with the firm of Russell
T. Quarterman, P.C., specializing in Wills and Probate, Real Estate
Transactions and Corporate Law. He lives in Athens with his Wife,
Megan who teaches first grade, and their 14-month-old son, Simon.
He can be reached at (706)543-7777, or emailed at arhodson@negia.net.
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