Estate law & Wills

THIS EMAIL WAS WRITTEN TO SOMEONE WHO WANTED TO MAKE HER SISTER THE GUARDIAN - SO THE SISTER IS THE CHOSEN PERSON THROUGHOUT - CHANGE AS NECESSARY.

Thank you for reaching out to us. It’s always a good idea to plan ahead to protect your child by ensuring that someone you choose will be responsible for him/her in the event something should happen to you and your husband so that is great that you are  planning for this now.

Although our website doesn’t address the issue of wills, I believe you are correct that it is in a will where you would create name a guardian and/or trustee for your child. In some states, a trustee may be called a conservator. However, I don’t believe that the guardianship would be binding if someone else were to file for custody. For example, if you leave your child to your sister, but then your husband’s mother feels that she should have custody, I would think that she could then go to court herself and file a custody petition. Your sister could contest (fight) her petition in court and hopefully use the fact that you appointed her as custodian to boost her chances of getting custody but it would still be up to the judge to hold a trial to decide what is in the best interests of the child. If he felt that your mother-in-law, for example, were in a better position to raise your child, it is possible that your sister would not be the guardian even if you put that in your will. Again, I don’t know for sure that this is how it would work in your state so I strongly suggest getting legal advice to be certain.

Also, if you and your husband agree on your sister as the guardian, generally, it’s best if both you and your husband each create a separate will and agree on who will have custody of your child so that if something happens to both of you, s/he will be taken care of by the person you choose, no matter which of you dies first. For example, if you die first, even if your will says your sister should have custody of your child, your husband will also need a will saying the same thing because if he dies second, without a will, your will would not generally be the deciding factor in who gets custody of your child.

I am not an expert on [STATE] law, so I cannot tell you the proper format for a [STATE] will. [However, there is a legal form to make it valid and your will must be signed in front of two qualified witnesses. I’m not sure what a “qualified witness” is under [STATE] law. It likely means that both are adults and may also mean that at least one witness must be a notary or attorney. A lawyer would be able to advise you about what a qualified witness is. Someone at your county probate court may also be able to tell you what a qualified witness is. - THIS INFO IS FROM A SPECIFIC STATE, SEE IF YOU CAN FIND INFO LIKE THIS FOR HER STATE, TRY GOOGLE OR BAR ASSOCIATION WEBSITES] You may want to talk to an estate planning lawyer about making your sister your child’s guardian and/or trustee and other details such as when your child should be able to control any money you leave to him/her by him/herself without the help of your sister or another adult. Generally, it is not necessary to file a will with a courthouse, but you can check with a lawyer or someone at the courthouse may be able to answer that question for you.

Some lawyers will help you make a simple will that doesn’t cost very much money and can discuss your options and what might be best for your situation. You may be able to find a lawyer with the information on our website here: [STATE FINDING A LAWYER PAGE]

There are also websites that can help you fill out a form with your personal information and tell you how to have it signed. Here are a few that are not associated with WomensLaw.org, so I cannot vouch for them, but are provided for your information:
http://www.legacywriter.com/Wills.asp
http://www2.legalzoom.com/sem/last-wills.html
http://will.preparecase.com/

[SEE IF THE STATE BAR ASSOCIATION HAS A PAMPHLET ABOUT WILLS & INCLUDE IT IF IT DOES]

I also wanted to let you know that since you are thinking about making a will, you may also want to consider a living will and/or durable power of attorney. These are documents that are often helpful if you become incapacitated because of illness or accident. [SEE IF YOU CAN FIND INFO ON THE STATE BAR WEBSITE OR SOMEWHERE ELSE ABOUT LIVING WILLS & POAS OR USE http://estate.findlaw.com/estate-planning/living-wills/]