Please note that I am not a lawyer, and this is not to be considered legal advice. I am merely sharing what I have done for my will to try to help other parents write their will.
When you become a new parent, everything seems so perfect (and exhausting). It may be the last thing on your mind, but having a will is one of the most important things you can do for your family and your child(ren). In the event that something happens to you and your partner, you don’t want there to be any questions as to what happens with your possessions, and most importantly your children.
What is a will?
A will is a document that you have written up, or write yourself, that designates who inherits everything in the event of your death. This includes cash, bank accounts, real estate, assets, and even your children. Often people joke around about leaving certain items to someone…. “When I die, you get my book collection.” But when there are children involved, it is so much more important than that. Your will documents what you want to happen with your children, who should be their legal guardian until they become 18, as well as how your assets are divided.
As defined by the Merriam-Webster Dictionary:
Testament: an act by which a person determines the disposition of his or her property after death
What happens if I don’t have a will?
This varies greatly by state. In general, the states have different laws on how your property will be divided. Writing your own will guarantees that your money and property go to the people that you designate in the way you want. In some states, your spouse would only get 1/3 to 1/2 of everything, including your life insurance, and the rest is earmarked for your children. This sounds great, but without a will, the spouse usually has to show accounting records to the court annually to show they are using the money in your children’s best interests. If you and your spouse are both deceased, the state will determine what happens with your children. Having a will guarantees that they are placed with the person that you have appointed.
Parts of a will
Wills can be written in many different ways. I looked up many different formats and wording online before writing our wills and combined aspects from different ones together. I made sure to outline the following sections in our wills. Justin and my wills are almost identical, just switching out a few names here and there for it to make sense.
Declaration & Revocation of All Prior Wills & Codicils
This section states that you are of sound mind, not being coerced, and that this will nullifies any previous will that you may have made.
The familial relationships section has two subsections. The first subsection is ‘marriage’. In this section I declared that I am legally married to Justin and the date of the marriage. I also noted that for the rest of the document he will be listed as spouse (much easier than typing his name every time).
The second section is labeled ‘children’. Here I designate the names and dates of birth for our children. I don’t want there to be any questions that both of the boys are included in this will.
Appointment of Executors
Your executor is the person who will see to it that your will is followed. This is usually also the person who handles any paperwork regarding your death and any following paperwork. Typically, your spouse is named as your executor. We have each other listed as our executor. I have also added an alternate executor, in the case that Justin is unable to carry out the duties. My alternate is my sister, and my second alternate is Justin’s brother. For his will, his brother is his first alternate and my sister his second alternate.
Within this section are a few other subsections. The first is Power and Authorities which grants the executor all power permitted by law to fulfill my will. The second subsection states that my executor can serve without bond, meaning I don’t require a bond before they can access my property. Most of the time, this is added as long as you trust the person you are naming as executor. And really, why would you name someone as executor if you don’t feel like you can trust them?
The last subsection is Financial Authorities with three different designations. The first states that the executor can continue and manage anything necessary until my estate is distributed. Second, my executor has the authority to decide if something needs to be sold or auctioned in the best interest of everyone involved. For example, if my vehicle is no longer needed, my executor has the power to sell and make that part of the monetary inheritance. Last, my executor can borrow money from my estate if needed in order to liquidate my estate.
Appointment of Guardians
PARENTS PAY ATTENTION…. this is the important section! In this section, you name the guardians of your children in the event you and your spouse are unable to care for your children. This is a big decision. You really need to think about who you would want to raise your children. Are they in a place in life to take on children? Would they raise them in ways that you agree with? Most important, are they willing to take in your children?
For us, my sister is listed as the guardian for our boys. She and I had a discussion about it when I was pregnant with Tyler. I wanted to make sure that she knew that we were putting it in our wills. I had her talk to her husband to make sure he was ok with it. A few months later, when she got pregnant, the conversation was reversed and I am named guardian of her children as well.
For guardians, I named a guardian, alternate, and second alternate to make sure that our children are covered. As I said, our first guardian listed is my sister. Second and third are our parents. When I named my sister, I only listed her name, not her husband as well. I love him, but if they ended up not together for one reason or another, I don’t want there to be question on who they go to. For our parents, I listed and/or for them. I know that could cause the same confusion, but both of our parents have been married for over 25 years, I think they are pretty good.
Another important section in your will is your beneficiaries. This is where you list who gets what of your money and property. My first beneficiary is my husband. For the alternate beneficiary, I have that everything is split 50/50 between my two boys. If they aren’t 18 when this happens, then it falls to their guardian to hold their inheritance until they are of legal age. My second alternate states to split everything in half between my sister and Justin’s brother. Both of our wills are the same on this section as well.
You could theoretically add anything extra you want in this section. The only thing listed in both of ours is our wishes for our remains. We both have listed that we want to be cremated and our ashes spread at Fort Myers Beach. This is the beach that I grew up going to and where our family timeshare condo is that we go to every year.
This section has a few legal notes for the will. The first is the language of the will and notes on phrasing. If a word or phrase indicates gender (such as his or hers) it is assumed to mean either to fit as necessary. Same with singular or plural words or phrases. And it is not intended that any person is excluded from the will, so if it seems that way it is incidental. This section also accounts for the validity of the will. If a judge determines that a section is unlawful, it doesn’t disqualify the entire document.
Sign & Witness
This section is VERY IMPORTANT to also make sure that the will is considered valid. The person writing the will, the one that it is for, needs to sign and date the will. This signature also needs to be done in front of at least two witnesses who also sign. Most states don’t require it to be notarized, and most are good with two witnesses. Make sure you check with your state on what is required to make your will legal.
A witness to your will also needs to be someone who is not named in the will in any way. I also try to make sure it isn’t someone who is even family just to make it more legitimate. For example, my sister, Justin’s brother, and both of our parents definitely could not be witnesses to our will because they are listed in it. I usually try to find a good friend or neighbor to witness for us.
Of course, there are always exceptions to the rules. The most notable exception to your will and its designations are anything that already have their own beneficiaries listed. Usually if you set up a 401(k) through work, or have an IRA, these have their own designations for beneficiaries. And these beneficiaries listed with those will trump anything written in your will. If you change who gets something in your will, make sure you also update your beneficiaries with your retirement funds as well. Mine match my will, my spouse is listed first, my boys 50/50 after him, and my sister after the boys.
Anytime someone is named in the wills, I also add the maiden name when appropriate. For example, the top of mine says Stephanie Lynn (Beller) Lynch. My sister is listed as first guardian for my boys and I have her name written as Jennifer Lee (Beller) Downes. I do this to make sure there is no confusion on who I am referring to. I can always prove that I was/am Stephanie Beller. My sister can always prove she was/is Jennifer Beller. What if one of us got a divorce after I wrote these? I know we could prove we were that name at some point as well, but I also am following the idea that the more ways to prove you are who you are, the better. That’s why I put a date of birth for anyone who is a primary or first alternate for anything in the will.
Don’t do a joint will
It may seem easier and more time-efficient to make a joint will between you and your spouse, but generally this is not a good idea. There are so many things that can change, and quickly, that having a joint will can cause more issues. If you are typing your will, it is really quick and easy to change the names as needed. It took me a while to write my will, but once it was done I think it took me 5 minutes to create Justin’s.