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Any Lawyers (or those who have recently made wills): Will/Guardianship Questions


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DH & I plan to get a will made in the next few weeks. Other than the life insurance (we both have policies) when we died, we really have no financial assets of significance. Here are the questions we have.

 

1. Is there any real advantage to paying the extra $$$ for a lawyer over a good will-making software kit (Okay, i'm sure the lawyers will say yes, but honestly. . ) If there *really* is an advantage, what is it?

 

2. Would you recommend we name seperate guardians/executors? Also, should we have a different person manage our life insurance money in the event we would both die and our boys have to go live w/ a guardian?

 

3. This is the *BIG* issue. We are naming FRIENDS not family members as our top two choices for guardians. I realize the courts highly favor family members. We have GOOD reasons for not choosing family members.

 

Can a family member challenge our will in court and win????? I am appalled to even think of this, but I want to be sure it can't happen.

 

I thought about listing the reasons in the will, but some of them are highly personal, and it seems almost inappropriate.

 

So, any suggestions are appreciated. I do not see the need to discuss this with relatives/family beforehand, because it would be a huge source of conflict.

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I know that a lawyer does cost money but esp. since you are worried about family challenging your decisions, I would seek out a lawyer and set up a TRUST for the kids. This helps avoid probate and added costs at that point.

 

The lawyer can also help you set up things so that if only 1 of you dies, the other spouse has immediate and full access to everything.

 

Our trust, living wills, guardianship, etc. was more complicated (we have 3 special needs kids--2 of which will never live on their own) and ours cost us about $1200.

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I wouldn't discuss your decision with anyone (other than making sure the family you're appointing is willing to be guardians, which I'm sure you've done :)) - Hopefully you will never have to use your will and guardians, so it would just cause unneccesary conflict.

 

We set up a person to be in charge of executing our will and we made note of how the money should be used (for any necessary things for their upbringing, then for college, but should not get their part in cash until they are 25)

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If your will is simple, it's only a couple hundred dollars for the attorney. As a pp said, if the will would be contested, I would get an attorney to at least do the guardianship part. I think it would be good to have documentation of the reasons not to name family as guardians. An attorney would know whether that went in the will itself or should be in a notarized supplement or some other form. (If you go without an attorney, I would write out the reasons, notarize the document, and give the notarized document to someone trusted other than the family you named as guardians--or put it right in the will.)

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Can a family member challenge our will in court and win? I am appalled to even think of this, but I want to be sure it can't happen.

 

I thought about listing the reasons in the will, but some of them are highly personal, and it seems almost inappropriate.

 

I just went through this. The lawyer I spoke with told me to put the reasons down in an attached document. You can make what's called an ethical will. You can look that term up; basically, it's a description of the morals and values you hoped to pass down. Remember, this is your last chance to speak up on behalf of your childrens' safety and well-being. The people who are making that decision will need to know everything you knew. It's the only way a court will take your requests seriously. Don't go gently. Be factual, but give all the facts. If you have evidence (pictures of bruises left, hospital or counselors records) make sure to store those in the same place as the will. If a relative seeks custody, your friends will have to prove that the relative is unfit, or at least convince the relative that they can prove that.

 

I also left a letter for the relatives I thought would try to gain guardianship. I figured if they didn't know their reputation was at stake, they might be less likely to fight to get guardianship. I listed for the relatives reasons like: the kids should stay in the city they call home, in all of their Scouts and other groups, and live with people they've seen every day since they were babies, instead of making a total life transition to stay with people they only saw on holidays in town they've never lived in. I don't know if the letters will actually sway a determined grandparent, but I think there's a small chance it will help a little. Anyway I wanted to put up as many walls as possible between relatives and the kids on the theory that every little bit helps.

Edited by dragons in the flower bed
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DH & I plan to get a will made in the next few weeks. Other than the life insurance (we both have policies) when we died, we really have no financial assets of significance. Here are the questions we have.

 

1. Is there any real advantage to paying the extra $$$ for a lawyer over a good will-making software kit (Okay, i'm sure the lawyers will say yes, but honestly. . ) If there *really* is an advantage, what is it?

Given your concerns about family contesting the will, having a lawyer do this may be best. Otherwise I'd say to just do it yourself.

 

2. Would you recommend we name seperate guardians/executors? Also, should we have a different person manage our life insurance money in the event we would both die and our boys have to go live w/ a guardian?

I would definitely go with separate guardians/executors. Your executor can manage your life insurance money.

 

3. This is the *BIG* issue. We are naming FRIENDS not family members as our top two choices for guardians. I realize the courts highly favor family members. We have GOOD reasons for not choosing family members.

 

Can a family member challenge our will in court and win????? I am appalled to even think of this, but I want to be sure it can't happen.

 

I had/have the same concerns. We wrote up two documents of which my family are NOT aware: the first is a letter explaining our reasoning in choosing the guardians that we did, and explaining our concerns about certain people. The second document is a letter to our children's guardians explicitly stating who can/should have visitation privileges and who should not, and why. Both of these documents will be totally secret and confidential UNLESS there is a court challenge, in which case the lawyer will use them as necessary.

 

I thought about listing the reasons in the will, but some of them are highly personal, and it seems almost inappropriate.

 

Our documents, explained above, are not part of the will. The will does, however, refer specifically to them. (Something like: See attached memo dated XXX.) The documents are stapled to the will.

 

So, any suggestions are appreciated. I do not see the need to discuss this with relatives/family beforehand, because it would be a huge source of conflict.

 

DO NOT discuss any part of your post-life arrangements with your family, ever. It will only create unhappiness.

 

 

Some thoughts above.

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I just went through this. The lawyer I spoke with told me to put the reasons down in an attached document. You can make what's called an ethical will. You can look that term up; basically, it's a description of the morals and values you hoped to pass down. Remember, this is your last chance to speak up on behalf of your childrens' safety and well-being. The people who are making that decision will need to know everything you knew. It's the only way a court will take your requests seriously. Don't go gently. Be factual, but give all the facts. If you have evidence (pictures of bruises left, hospital or counselors records) make sure to store those in the same place as the will. If a relative seeks custody, your friends will have to prove that the relative is unfit, or at least convince the relative that they can prove that.

 

:iagree:

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Thank you for the advice about the additional documentation. To be honest, i have to say I feel *really* horrible in one sense about writing documents that contain "bad" things about family members/relatives which could be potentially opened and read in a courtroom setting. Although I may not wish to have my children live with these people, i also really don't desire to publically humiliate them. If that makes sense. . .

 

On the other hand, if that is what is absolutely necessary for the well-being and safety of my children, I'll bite the bullet and do it. . .for them. Because they are most important.

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Every state has different will/estate laws as well. For that reason alone I would want to consult an attorney. A will doesn't have to be elaborate or difficult to be correct, but an attorney can bring up issues thta you never considered and make certain that they way it is written can't be misunderstood in court if it is challenged. Plus they can offer solutions to the potential problems (that they may have seen in other families)- remember they have more experience than you and sometimes it is wise to ask someone else to help. If you would want the life insurance to be set up in a trust for the children, you especially need to find someone with a good reputation that has lots of experience in setting those up. Remember the saying - an ounce of prevention....

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The issue of guardianship is one of the most important you will make in your lives, therefore well worth the money to pay and attorney, IMO.

 

Our attorney recommended seperate individuals for guardianship and to manage funds. His reasoning is that especially in the teen years it can create a lot of friction between the guardians and the kids and by naming a third party it removes that conflict.

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We've had wills written up in 2 different states. In one state, the lawyer suggested we write a letter stating why we were excluding 35yos from our will, in case this ds decided to contest it. In another state, the lawyer didn't suggest the letter, but I did it anyway. (35yos is lousy with money - declared bankruptcy a couple of times that I'm aware of, etc. Didn't want him showing up and trying to 'take over', should dh and I suddenly die.)

 

The only people who know about the letter are the lawyer and all our other kids (who inherit anything we have). I saw no need to inform 35yos. It just eases my mind to know that it's there if needed.

 

Kathy

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Yes, the person who has guardianship should NOT manage the life insurance money. You might consider listing an institution rather than an individual as the executor (bank trust department as an example). We have had to do codicils to our wills b/c of changed family circumstances among the executors we chose (divorce for the first and strained financial issues for the second). When we made the second change we named our bank's trust deparment as executor. While an institution will charge you a fee for managing the assets you have, there will be safeguards against improper usage. You just NEVER know what will happen with an individual so naming an institution can be prudent. Of course, you may have changed issues with your named guardian as well, but you can't very well name an institution for your children!

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Our children will go to my sister, if something should happen to us. She and her husband will also be intrusted with all our money, so that they can do whatever needs to be done to have a family of 8, rather than 5. We trust them implicitly with our children (who would be like their own if something should happen to us), so why not entrust them with the money as well!?

We have sometimes pondered making friends from our church the guardians (not cause we don't trust my sister, more because they go to our church,....) and there also they could have done with the money as they thought best.

 

This has been talked through with all close relatives, who are fine with it (but our families aren't difficult to get on with at all!!!).

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My grandpa was a lawyer and a judge. And yet when he died (after grandma) his will was contested and broken. The reason was that he had based his decisions on *outdated* values . Only unmarried daughters were getting money. At the time the will was written, to be an adult woman and not married meant you had no financial security. My uncle (another lawyer and judge) was able to persuade the court that those values no longer hold true, and the money should be shared equally among all children.

 

Ok, I'm in a different country, and our civil law is not based on Common Law, like the rest of Canada, and the States. But at least here, moral values mean nothing when it comes to a will.

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