Welcome to Waller Mitchell & Barnett :: Wills

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Introduction - Though most Americans are aware that they need a will, the majority -- about 70% of us -- don't have one. People procrastinate for many reasons, but it's important to know that writing a will doesn't have to be complicated or expensive. and once it's done, you can rest a little easier, knowing that your wishes will be followed after your death. What happens if I die without a will?

If you don't make a will or use some other legal method to transfer your property when you die, state law will determine what happens to your property. This process is called "intestate succession." Your property will be distributed to your spouse and children or, if you have neither, to other relatives according to a statutory formula. If no relatives can be found to inherit your property, it will go into your state's coffers. Also, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit.

Do I need a lawyer to make my will? Probably not. Making a will rarely involves complicated legal rules, and most people can draft their own will with the aid of a good self-help book or software program. You just need to know what you own, whom you care about, and have a good self-help resource to guide you.

But if you have questions that aren't answered by the resource you're relying on, a lawyer's services are warranted. Even so, you don't have to turn over the whole project; you can simply ask your questions and then finish making your own will.

I don't have much property. Can't I just make a handwritten will? Handwritten wills, called "holographic" wills, are legal in about 25 states. To be valid, a holographic will must be written, dated and signed in the handwriting of the person making the will. Some states allow you to use a fill-in-the-blanks form if the rest of the will is handwritten and the will is properly dated and signed.

If you have very little property, and you want to make just a few specific bequests, a holographic will is better than nothing if it's valid in your state. But generally, we don't recommend them. Unlike regular wills, holographic wills are not usually witnessed, so if your will goes before a probate court, the court may be unusually strict when examining it to be sure it's legitimate. It's better to take a little extra time to write a will that will easily pass muster when the time comes.

What makes a will legal? Any adult of sound mind is entitled to make a will. (and if you're reading this article, you're of sound mind.) Beyond that, there are just a few technical requirements:

• The will must be typewritten or computer generated (unless it is a valid handwritten will, as discussed above).

• The document must expressly state that it's your will.

• You must date and sign the will.

• The will must be signed by at least two, or in some states, three, witnesses. They must watch you sign the will, though they don't need to read it. Your witnesses must be people who won't inherit anything under the will.

You don't have to have your will notarized. In many states, though, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die.

Do I need to file my will with a court or in public records somewhere? No. A will doesn't need to be recorded or filed with any government agency, although it can be in a few states. Just keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.

Can I use my will to name somebody to care for my young children, in case my spouse and I both die suddenly?

Yes. If both parents of a child die while the child is still a minor, another adult -- called a "personal guardian" -- must step in. You and the child's other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should each name the same person. If a guardian is needed, a judge will appoint your nominee as long as he or she agrees that it is in the best interest of your children.

The personal guardian will be responsible for raising your children until they become legal adults. Of course, you should have complete confidence in the person you nominate, and you should be certain that your nominee is willing to accept the responsibility of raising your children should the need actually arise.

The personal guardian will be responsible for raising your children until they become legal adults. Of course, you should have complete confidence in the person you nominate, and you should be certain that your nominee is willing to accept the responsibility of raising your children should the need actually arise.

Can I leave property to young children in my will? Children under 18 can inherit property -- but if it's anything valuable, an adult must manage it for them. You can use your will to name someone to manage property you leave to minors, thus avoiding the need for a more complicated court-appointed guardianship. There are many ways to structure a property management arrangement. Here are four of the simplest and most useful:

1. Name a custodian under the Uniform Transfers to Minors Act. In every state except South Carolina and Vermont, you can choose someone, called a custodian, to manage property you are leaving to a child. If you die when the child is under the age set by your state's law -- 18 in a few states, 21 in most, 25 in several others -- the custodian will step in to manage the property until the child reaches the age specified by your state's law.

2. Set up a trust for each child. You can use your will to name someone (called a trustee), who will handle any property the child inherits until the child reaches the age you specify. When the child reaches the age you specified, the trustee ends the trust and gives whatever is left of the trust property to the child.

3. Set up a "pot trust" for your children. If you have more than one child, you may want to set up just one trust for all of them. This arrangement is usually called a pot trust. In your will, you establish the trust and appoint a trustee. The trustee decides what each child needs, and spends money accordingly.

4. Name a property guardian. If you wish, you can simply use your will to name a property guardian for your child. Then, if at your death your child needs the guardian, the court will appoint the person you choose. The property guardian will manage whatever property the child inherits, from you or others, if there's no other mechanism (a trust, for example) to handle it.

Can I disinherit relatives I don't like? It depends on whom you want to disinherit. If it's anyone other than your spouse or child, the rule is very simple: Don't mention that person in your will, and he or she won't receive any of your property. Rules for spouses and children are somewhat more complex.

Spouses

It is not usually possible to disinherit your spouse completely. If you live in a community property state (Alaska (only if you have made a written community property agreement), Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin), your spouse automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. You can, however, leave your half of the community property, and your separate property (generally considered to be all property you owned before marriage or received via gift or inheritance during marriage), to anyone you choose.

In all other states, there is no rule that property acquired during marriage is owned by both spouses. To protect spouses from being disinherited, these states give your spouse a legal right to claim a portion of your estate, no matter what your will provides. But keep in mind that these provisions kick in only if your spouse challenges your will. If your will leaves your spouse less than the statutory share, and he or she doesn't object, the document will be honored as written.

If you don't plan to leave at least half of your property to your spouse in your will and have not provided for him or her generously outside your will, you should consult a lawyer -- unless your spouse willingly consents in writing to your plan.

Children

Generally, it's legal to disinherit a child. Some states, however, protect minor children against the loss of a family residence. For example, the Florida Constitution prohibits the head of a family from leaving his residence to anyone other than a spouse if he is survived by a spouse or minor child.

Most states have laws -- called "pretermitted heir" statutes -- to protect children of any age from being accidentally disinherited. If a child is neither named in your will nor specifically disinherited, these laws assume that you accidentally forgot to include that child. In many states, these laws apply only to children born after you made your will, but in a few states they apply to any child not mentioned in your will. The overlooked child has a right to the same share of your estate as he or she would have received if you'd left no will. The share usually depends on whether you leave a spouse and on how many other children you have, but it is likely to be a significant percentage of your property. In some states, these laws apply not only to your children, but also to any of your grandchildren by a child who has died.

To avoid any legal battles after your death, if you decide to disinherit a child, or the child of a deceased child, expressly state this in your will. and if you have a new child after you've made your will, remember to make a new will to include, or specifically disinherit, that child.

What should I do with my will after I sign it? After you die, your executor (the person you appointed in your will) is responsible for seeing that your wishes are carried out as directed by your will. So wherever you choose to keep your will, make sure your executor (and at least one other person you trust) knows where to find it. Probate and executors are discussed in more detail in the Probate and Executors.

Your executor's first task is to locate your will, and you can help by keeping the original in a fairly obvious place. Here are some suggestions.

• Store your will in an envelope on which you have typed your name and the word "Will."

• Place the envelope in a fireproof metal box, file cabinet or home safe. An alternative is to place the original in a safe deposit box. But before doing that, learn the bank's policy about access to the box after your death. If, for instance, the safe deposit box is in your name alone, the box can probably be opened only by a person authorized by a court, and then only in the presence of a bank employee. An inventory may even be required if any person enters the box or for state tax purposes. All of this takes time, and in the meantime, your document will be locked away from those who need access to it.

What if someone challenges my will after I die? Very few wills are ever challenged in court. When they are, it's usually by a close relative who feels somehow cheated out of his or her rightful share of the deceased person's property.

Generally speaking, only spouses are legally entitled to a share of your property. Your children aren't entitled to anything unless it appears that you unintentionally overlooked them in your will.

To get an entire will invalidated, someone must go to court and prove that it suffers from a fatal flaw: the signature was forged, you weren't of sound mind when you made the will or you were unduly influenced by someone.

Disinheriting Family Members

What you need to know if you're thinking of disinheriting a spouse, child or other relative.

The word "disinheritance" probably brings to mind thoughts of family fights, stress and strife. But there are many reasons why a someone might not want to leave property to a relative; it isn't always about strained relationships. Perhaps you're in a second marriage to someone who's well-off, and you're more concerned about providing for your children from a previous marriage. Or maybe one of your children has struck it rich as an entrepreneur, while another child or grandchild has special needs. Then again, maybe you have had a falling-out with a family member, and you don't want to leave that person a penny.

It's easy to disinherit anyone other than your spouse or a child. The rule is very simple: anyone not mentioned in your will won't inherit any of your property. But rules for spouses and children are somewhat more complex.

Disinheriting Your Spouse

In most states, you cannot disinherit your spouse completely. If you live in a community property state (Alaska (only if you have made a written community property agreement), Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin), your spouse automatically owns half of what either of you earned during your marriage, unless you have a written agreement to the contrary. You can, however, do whatever you like with your half of the community property and with your separate property. (For help sorting out what's community property and what's separate property, see Special Property Rules for Married People.)

In all other states, there is no rule that property acquired during marriage is owned by both spouses. To protect spouses from being disinherited, these states give your spouse the right to claim 1/4 to 1/2 of your estate, no matter what your will provides. But keep in mind that these provisions kick in only if your spouse goes to court to challenge your will. If your spouse doesn't object to receiving less than the share set out by law, your will will be honored as written.

Example:

Johanna's will leaves $80,000 to her fourth husband, Fred, and divides the rest of her property, totaling almost $500,000, among her three sons from previous marriages. If Fred is happy with his inheritance, everything will go according to Johanna's plan. But if Fred wants more, he can claim a share of Johanna's estate, which will be substantially greater than $80,000. If he does, Johanna's three sons will share what's left.

If you don't plan to leave at least half of your property to your spouse in your will and have not provided for him or her generously outside your will, you should consult a lawyer -- unless your spouse willingly consents in writing to your plan.

Disinheriting a Child

Your right to disinherit a child is restricted by laws that give inheritance rights to minor children and that protect children of any age from accidental disinheritance.

Some states protect children under 18 from the loss of a family residence. For example, the Florida constitution prohibits the head of a family from leaving his or her residence to anyone other than a spouse or minor child if either is alive.

Most states have laws to protect against accidental disinheritance; if a child is born after you made your will, these laws assume that you accidentally forgot to revise your will to include that child. The overlooked child has a right to the same share of your estate as he or she would have received if you'd left no will. The exact amount usually depends on whether you leave a spouse and on how many other children you have, but it is likely to be a significant percentage of your property. In some states, these laws apply not only to your children, but also to any of your grandchildren by a child who has died.

If you decide to disinherit a child, or the child of a deceased child, your will should clearly state that intention.

Revise Your Will When Your Family Changes

Significant family changes always signal the need to revise your estate plan. In particular, you should make a new will if you get a divorce, or if a child is born or dies.

In several states, getting divorced automatically revokes gifts made to a former spouse in your will. In some states, however, your ex-spouse will still be entitled to take property as your will directs. If you remarry, state laws become even more complex. To be on the safe side, if you get divorced, make a new will that revokes your old one. If you want to disinherit your former spouse, simply leave him or her out of your new will -- that will do the job.

If you have a new child after preparing your will, revise your will to account for the new child. If you don't, your existing estate plan will likely be disrupted when that child claims his or her share of your estate under law.

If a grown child dies, leaving children (your grandchildren), you should make a new will to provide for or disinherit these grandchildren. Then, make sure that all property you left to the deceased child is redirected to other beneficiaries.

In several states, getting divorced automatically revokes gifts made to a former spouse in your will. In some states, however, your ex-spouse will still be entitled to take property as your will directs. If you remarry, state laws become even more complex. To be on the safe side, if you get divorced, make a new will that revokes your old one. If you want to disinherit your former spouse, simply leave him or her out of your new will -- that will do the job.

If you have a new child after preparing your will, revise your will to account for the new child. If you don't, your existing estate plan will likely be disrupted when that child claims his or her share of your estate under law.

If a grown child dies, leaving children (your grandchildren), you should make a new will to provide for or disinherit these grandchildren. Then, make sure that all property you left to the deceased child is redirected to other beneficiaries.

Here is an example:

Nick and Nora have three children, ages 4, 5 and 10. In their wills, Nick and Nora each leave everything to each other, and name the children as alternates. If both parents die and the children inherit everything, Nick and Nora's wills provide that one pot trust will be set up for all the property. The trustee, Nora's sister Chloë, will be responsible for managing the assets in the trust and spending trust money for the children in whatever amounts she decides are warranted.

Nick and Nora pick a pot trust, rather than three individual trusts, because they figure that the oldest child will need more money sooner than the other two. They don't want Chloë limited to spending the same amount of money on each child. Another consideration is that because the children are young, a trust could last a long time. They don't want to saddle Chloë with the paperwork of administering three separate trusts.

4. Name a Property Guardian
If you wish, you can simply use your will to name a property guardian for your child. Then, if at your death your child needs the guardian, the court will appoint the person you chose. The property guardian will manage whatever property the child inherits, from you or others, if there's no mechanism (a trust, for example) to handle it.

Using Life Insurance to Provide for Children

You can use an UTMA custodianship or child's trust to name a property manger for life insurance proceeds you leave to your young children. But before you buy life insurance to provide for your kids, you should consider the following: Do you really need it and, if you do, what type of policy should you buy?

What You Can't Do in Your Will

Wills aren't the place to handle certain kinds of property or issues.
Wills are wonderful, simple, inexpensive ways to address many people's estate planning needs. But they can't do it all. Here are some things you shouldn't expect to accomplish in your will.

Name Beneficiaries for Certain Kinds of Property

You can't use your will to leave:

• Property you hold in joint tenancy with someone else. At your death, your share will automatically belong to the surviving joint tenant(s). A will provision leaving your share would have no effect unless all joint tenants died simultaneously.

• Property you've transferred to a living trust.

• Proceeds of a life insurance policy for which you've named a beneficiary.

• Money in a pension plan, individual retirement account (IRA), 401(k) plan or other retirement plan. Instead, name the beneficiary on forms provided by the account administrator.

• Money in a payable-on-death bank account. To do that, just fill out a simple form at the bank.

Avoid Probate

Property left through a will usually must spend several months or a year tied up in probate court before it can be distributed to the people who inherit it. (See Probate FAQ)

Reduce Estate Taxes

If you expect your estate to owe federal estate taxes, you may want to take steps now to reduce the tax liability. A will won't affect this, but many kinds of trusts can reduce or postpone the tax bill.

Leave Funeral Instructions

Wills are typically not read -- or even found -- until days or weeks after a death. That's too late to be of help to the people who must make immediate decisions about the disposition of a body and funeral or memorial services. Instead, make a separate document spelling out your wishes, and tell your executor where to find it when the time comes.

Put Certain Conditions on Gifts

There are also a few legal limitations on what you can do in a will. You cannot attempt to encourage or restrain certain types of conduct of your beneficiaries. For example, you cannot leave a gift contingent on the marriage, divorce or change of religion of a recipient.

You can, however, make a gift contingent on other behavior -- that is, "to John, if and when he goes to college." Why this distinction? Because courts say that "public policy" prohibits attempts to coerce fundamental rights like the choice of spouse or religion.

It is allowable to try to control lesser matters, like going to school. Making such contingent gifts, however, usually opens a can of worms -- who will enforce the will's conditions, and for how long?

Leave Money for an Illegal Purpose

This one doesn't come up often, but you can't leave money earmarked for something illegal, such as encouraging minors to smoke tobacco.

Arrange to Care for a Disabled Beneficiary

If you want to provide long-term care for someone, a will isn't the place. Far better to set up a trust that's tailored to the beneficiary's needs. See a lawyer who's an expert in the complicated laws that affect this situation.

Leave Money to Pets

Pets can't own property, so don't try to leave them any in your will. Instead, leave the animal to someone who has agreed to provide a good home -- and leave that person some money to help out with pet-related expenses. Some states allow you to set up trusts for animals, but that's usually not necessary if you have confidence in the person you've named to care for your pets after your death.

Do You Need a Lawyer to Make Your Will?

Most people can make a will without a lawyer's help. Here's why.

Even if you've decided to make your own will, you may feel a little uneasy about the process. After all, a will is an important legal document -- shouldn't you seek a lawyer's help? That depends on your situation. If you're like most people, you won't need a lawyer; preparing your document will be a fairly easy task. You may have a home, some investments and some personal items to pass on to your loved ones. You may also own a small business or some additional real estate. and if you have young children, you'll probably want to name a guardian to take care of them, as well as someone to manage any property they inherit. If you have good self-help materials, it's not difficult to make a will that takes care of these basic concerns.

You may be interested to know that when a lawyer drafts a will, he or she usually starts with a standard form that contains the same types of clauses contained in most do-it-yourself wills. Most attorneys put their standard will form into a computer and have a secretary type in the client's name, the names of the people the client wants his or her property to go to, and other basic information -- exactly the same thing you can do for yourself when you make your own will.

Making a will rarely involves complicated legal rules. In most states, if you're married, your spouse has the right to claim a certain amount of your property after your death. If you leave your spouse at least half of your property, this won't be an issue. and you need to sign and acknowledge your will in front of witnesses. But beyond these basic requirements, you may parcel out your property however you like, and you don't have to use fancy language to do it. In short, if you know what you own, whom you care about, and you take a little time to use your self-help resources, it's hard to make a mistake.

However, you shouldn't approach the task of will drafting with a rule against consulting a lawyer. In some situations a lawyer's services are warranted. But even if you have some questions for a lawyer, you don't necessarily have to turn over the whole project; you can simply ask your questions and then finish making your own will.

You may want to consult a lawyer if:

• You have questions about your will or other options for leaving your property.

• You expect to leave a very large amount of assets (say, over $1 million) and they will be subject to estate tax unless you engage in tax planning.

• Rather than simply choosing people to inherit your property, you want to make more complex plans for what happens to it -- for example, leaving your house in trust to your spouse until he or she dies and then having it pass to your children. Older people who have remarried often want to set up this type of trust.

• You are a small business owner and have questions as to the rights of surviving owners or your ownership share.

• You must make arrangements for long-term care of a beneficiary -- for example, setting up a trust for an incapacitated or disadvantaged child.

• You fear someone will contest your will on grounds of fraud, or claim that you were unduly influenced or weren't of sound mind when you signed it.

• You wish to disinherit, or substantially disinherit, your spouse. It's usually not possible to do this if your spouse objects, but a lawyer can explain your spouse's rights.

Also, some people simply feel more comfortable having a lawyer review their will, even though their situation has no apparent legal complications.

If you decide to see a lawyer, your next task will be to find one who is knowledgeable about wills, charges a reasonable fee and will respect your efforts to make your own will. This may not be easy, but it shouldn't be impossible.

Special Property Rules for Married People
Be sure you know what property is yours to leave in your will.

If you leave everything to your spouse, as many people do, you don't need to worry about what belongs to you and what belongs to your spouse. But if you want to divide your property among several beneficiaries, you need to understand just what's yours to leave.

In most states, it's easy to tell who owns what. If your name alone is on the deed, registration document or other title paper, it's yours. You are free to leave your property to whomever you choose, subject to your spouse's right to claim a certain share after your death.

If, however, you live in a community property state, the rules are more complicated.

Community property is a method for defining the ownership of property acquired during marriage. Generally, in states that follow community property principles, all earnings during marriage and all property acquired with those earnings are considered community property, owned equally by husband and wife. Likewise, all debts incurred during marriage are debts of the couple. At the death of one spouse, his half of the community property will go to the surviving spouse unless he leaves a will that directs otherwise. Separate property may be left to whomever the owner wishes. Community property laws exist in Alaska (if you have made a written property agreement), Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

Married couples don't have to accept these rules. They can sign a written agreement that makes some or all community property the separate property of one spouse, or vice versa.

Here are some examples:

Is It Time to Change Your Will?

Make sure that your current wishes are reflected in your will.

Experience teaches us that the only constant in life is change. But we don't always keep up with the important details -- such as updating wills and other important legal documents -- that should accompany big changes in our lives. Your will should always be tailored to your current life situation, not the one you faced five years ago, or maybe even just last year.

Here are some events that should nudge you toward making a new will:

• You change your mind about who you want to inherit a significant portion of your property.

• You get married. In most states, your spouse is legally entitled to claim a fixed percentage of your property after you die, unless you have a written agreement to the contrary. Depending on where you live, the amount may be as much as half of what you own. If you don't plan to change your will to leave at least half of your property to your spouse, see a lawyer.

• You are unmarried, but have a new partner. Without a will or alternate estate plan, such as a living trust, your partner will inherit nothing. To avoid this, you and your partner will probably want to make new wills right away.

• You get divorced. In several states, a final judgment of divorce (or an annulment) has no effect on any gift made by your will to your former spouse. In others, it revokes such a gift. and in still a few others, divorce revokes the entire will. No matter what state you live in, you should make a new will after a divorce.

• You have a new baby. You'll want to name a personal guardian for your new little one. This is the person you want to raise your child in the unlikely event that neither you nor the other parent were available.

• You have new stepchildren. Unless you legally adopt stepchildren, they have no right to inherit from you. If you want to leave them a share of your property, you'll need to make a new will.
  You acquire or dispose of substantial assets, such as a home. If you leave all your property in a lump to one or more people or organizations, there is no need to change your will as your property increases or decreases. But if you've made specific gifts of property that you no longer own, you'll want to change your will to avoid leaving the intended beneficiaries out in the cold. (If you no longer own the property, the beneficiaries are out of luck; they don't get anything in lieu of it.) Likewise, if you obtain new property and you want to leave it to someone specific, you'll need to change your will to make your wishes clear.

• You're married and move from a community property state to a common law property state, or vice versa. Community property and common law property states view the ownership of property by married couples somewhat differently. This means that what both you and your spouse own may change if you move from one type of state to the other. Of course, if you plan to leave all or the bulk of your property to your spouse, its official ownership status isn't important, and it's not necessary to change your will.

Community Property States:

Alaska*
Arizona
California
Idaho
Louisiana
Nevada
New Mexico
Texas
Washington
Wisconsin

*If you make a written community property agreement

Two Ways to Update Your Will

One way to update a will is to add a "codicil" to it. A codicil is a sort of legal "P.S." to the will, revoking part of it or adding a provision, such as a new gift of an item of property. Simple codicils made sense in the era of typewriters, when creating a brand new will would have been a hassle, but today they are normally a poor idea. Codicils can create confusion -- sometimes even conflict -- and they must be typed, dated, signed and witnessed just like a will. It's probably just as easy to make a new will.

When you make your new will, be sure to properly revoke your old one. You can do this in your new will just by including a simple statement like this: "I revoke all wills and codicils that I have previously made." In addition, you can avoid confusion by gathering together all copies of your old will and destroying them.

Finally, remember to review your new will periodically to see if there are any changes you want to make. Once a year would not be too often.

Choosing a Guardian for Your Children

Use your will to name a personal guardian for your children, to raise them in the highly unlikely event you can't.

If you have young children, you've probably thought about who would raise them if you and the other parent die or are unable to fulfill your parental responsibilities for some other reason. It's not an easy thing to consider. But you can make some simple arrangements now that will allay some of your fears, knowing that in the highly unlikely event you can't raise your kids, they will be well cared for.

All you need to do is use your will to name the person you want to be the "personal guardian" of your children if one is ever needed. Then, if neither you or the children's other parent can raise them and a court must step in, the judge will appoint the person you nominated in your wills as personal guardian (unless, for some reason, it is not in the best interests of your children).

If you don't name a guardian in your will, anyone who is interested can ask for the position. The judge then must decide, without the benefit of your opinion, who will do the best job of raising your kids.

Naming a Personal Guardian

You should name one personal guardian (and one alternate, in case your first choice can't serve) for each of your children. Legally, you may name co-guardians, but it's not a good idea because of the possibility that the co-guardians will later disagree or go separate ways.

Here are some factors you might want to consider when choosing a personal guardian:

• Is the prospective guardian old enough? (He or she must be an adult -- 18 years old in most states.)

• Do you and your children have confidence in the prospective guardian? Does your choice have a genuine concern for your children's welfare?

• Is your choice physically able to handle the job?

• Does he or she have the time?

• Does he or she have kids of an age close to that of your children?

• Can you provide enough assets to raise the children? If not, can your prospective guardian afford to bring them up?

• Does the guardian share your moral beliefs?

• Would your kids have to move?

If you're having a hard time choosing someone, take some time to talk with the people 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 and the other parent don't agree on whom to name, a court fight could ensue if both of you die while the child is still a minor. In that situation, the court would be faced with conflicting wishes, and would have to make a choice based on his or her view of what's in the best interests of your child.

Again, if you don't agree on one person, talk with the people you'd each like to name. Candid discussions with your potential guardians may bring new information to light and help you reach an agreement.

Choosing Different Guardians for Different Children

Most people want their children to stay together; if you do, name the same personal guardian for all of your kids.

You can, however, name different personal guardians for different children. Parents may do this, for example, if their children are not particularly close, and have strong attachments to different adults outside of the immediate family. For instance, one child may spend a lot of time with a grandparent while another child may be close to an aunt and uncle. In a second or third marriage, a child from an earlier marriage may be close to a different adult than a child from the current marriage. In these situations and others, you will want to choose the personal guardian you believe would be best able to care for each child.

Choosing a Different Person to Watch the Checkbook

Some parents name one person to be the children's personal guardian and a different person to look after financial matters. Often this is because the person who would be the best surrogate parent would not be the best person to handle the money.

For example, you may feel that your brother-in-law would provide the most stable, loving home for your kids, but you don't have much faith in his abilities as a financial manager. Perhaps you have a close friend who cares about your kids and would be better at dealing with the economic aspects of bringing them up. Provided that your brother-in-law and your friend agree, you can name him as personal guardian while naming her as custodian or trustee to manage your child's inheritance.

Making Your Wishes Known

Most people have strong feelings about how they want their children to be raised. Your concerns may cover anything from religious teachings to what college you'd like your child to attend.

One option is to write a letter to the personal guardian, outlining thoughts and feelings about how the children should be raised. Try not to put too much detail, though; it could cause your nominee much guilt and frustration later if unexpected circumstances thwart his or her attempts to carry out your plans to the letter.

The best guarantee of an upbringing you would approve of, however, is simply to choose someone who knows you and your children well, and whom you trust to navigate life's complexities on your children's behalf.

If You Don't Want the Other Parent to Raise Your Child

If one of a child's parents dies, the other parent usually takes responsibility for raising the child. This, of course, is what most people want.

If you are separated or divorced, however, you may feel strongly that the child's other parent shouldn't have custody if something should happen to you. But a judge will grant custody to someone else only if the surviving parent:

• has legally abandoned the child by not providing for or visiting the child for an extended period, or

• is clearly unfit as a parent.

In most cases, it is difficult to prove that a parent is unfit, absent serious problems such as chronic drug or alcohol use, mental illness, or a history of child abuse.

If you honestly believe the other parent is incapable of caring for your children properly, or simply won't assume the responsibility, you should write a letter explaining why, and attach it to your will. The judge may take it into account, and may appoint the person you chose as guardian instead of the other parent.

In all states, judges are required to act in the child's best interests. In making this determination, a judge commonly considers a number of factors that you might want to address when explaining your choice for personal guardian:

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