Will Do: An 8-Step Estate Planner for Parents

Staff Writer
Baystateparent Magazine

By MaryJo Kurtz

Do you have a will? Chances are that you don’t. A 2016 Gallup poll survey shows that only 44% of Americans have a will, a notable drop from 51% in 2005. This is alarming news, especially for families with minor children, because it means that a significant number of parents are trusting strangers in the court system to make crucial decisions about the care of their children. Let’s change that. It’s time to prioritize estate planning. Read on to find out how to put your plan in place.

You be the judge

“The only reason we didn’t have a will was because we could not agree on guardianship for the kids,” said Beth*, a divorced mother of two girls. “I would have selected my sister, but my ex didn’t like her. He would have selected his sister, but I didn’t like the way she was raising her boys. We couldn’t agree. We couldn’t even talk about it. So no will.”

Beth’s story is common. According to Carolyn Spring, an estate planning and elder law attorney in Westborough, debating guardianship is a common reason why parents delay a will. Other reasons include cost, time, and simply not wanting to deal with the topic. “People always believe it can be dealt with later, which is not always true,” she said.

If you die without a will, the court system will choose a guardian for your children. The judge will try to make the best decision based on available information gathered about your family. But without a will, “there may be a custody battle for the children, and someone who you do not want raising your children may win,” Spring noted.

Make a plan

To help you put a strong plan in place for your family, here’s estate planning broken down into eight steps. Block off time on your calendar now to discuss these and consider your wishes for each. With this information in place, you are ready to create your estate plan.

Name a guardian

One of the top questions Spring hears from parents: “How do we choose a guardian, and can it be our parents or siblings?”

She recommends parents consider “someone who will raise your children with values similar to yours, so the child’s upbringing will be as close as it can be to what it would have been if the parent had not died.”

If a grandparent is young and healthy, then he or she may be a good choice, Spring said. If considering a married sibling, she advises naming only the parent’s sibling and not the in-law.

“The brother-in-law or sister-in-law may not always be married to the sibling,” she cautioned.

Arrange a trust

Simply put, a trust is where you place your financial assets. This can be as basic as a savings account, or it can be structured in a more complex way to suit larger financial needs. There are three parties involved with a trust: the grantor (you), the trustee (the person you put in charge of the trust), and the beneficiaries (your children, for example). Spring said that parents often ask why they need a trust. “The answer is that minor children cannot manage their own money,” she said.

The terms of a trust can be outlined in your will. This is called a testamentary trust, and it is put into place when you die.

Another option is to establish a revocable living trust. This is put into place while you are still alive. You can maintain the trust as its trustee. The advantage to this type of trust is that it can ease the transition of your assets to your beneficiaries upon your death, saving time and legal expenses.

“A family’s circumstances determine which type of trust is most appropriate,” Spring noted.

Choose an executor

The executor oversees that your will is carried out as planned. Choose someone whom you trust, and designate this person in your will. The responsibilities of the executor include paying outstanding expenses, distributing your assets as directed, and representing you in possible legal disputes among your heirs. If you do not choose an executor, the probate court (a court that specializes in closing estates) will select someone to represent you.

Set up a durable power of attorney

A durable power of attorney authorizes someone to handle business and financial matters for you if you should become incapacitated. This is established in a separate document from your will. This should be someone you trust, a person who has the time and responsibility to handle this duty.

Establish a healthcare proxy

Similar to a durable power of attorney, this document identifies the person who will take responsibility for making decisions on your behalfshould you become incapacitated. The difference is that this person is specifically designated for medical and end-of-life issues. Choose someone who you trust understands your healthcare wishes and will advocate on your behalf.

Mark your calendar with a reminder to update your durable power of attorney and healthcare proxy documents.

“[They] can grow stale,” cautioned Boston and Lynnfield Attorney Kimberly J. Baker Donahue of KJB Law Firm. “Often banking and other institutions will not accept a very old document.” Donahue recommends updating both documents about every five years.

Secure your beneficiaries

In addition to naming beneficiaries in your will, you should also review other financial assets, such as your retirement accounts and insurance policies. These will likely not be mentioned in your will, so it is important to update beneficiary information. Review not only the names on these accounts, but also the contact information for those involved. Now is the time to make any needed changes.

Plan your funeral

By creating a document outlining your final wishes, you will help grieving friends and family members make final arrangements. Would you prefer a burial or cremation? Is there a special place where you would like to be buried? Are there meaningful readings or songs that you would like at your memorial service? These are the types of questions to consider. Document your desires and include this in your estate plan.

Make it legal

Now that you have a plan in place, make it legal.

To finalize a will in the Commonwealth of Massachusetts, you need to sign it in front of two witnesses. You and the witnesses must be at least 18 years old and fully understand what you each are signing. Include contact information for your witnesses with their signatures so that a probate court can contact them if needed. Your will does not need to be notarized to make it legal in Massachusetts.

It is always recommended that you work with an estate planning lawyer to create these documents, as this is the best way to guarantee your wishes are met and binding in a court of law. Estate planning costs vary greatly between services and lawyers, so you should call around for a fair price. Be clear about what types of documents you want to include in your plan. If you are a single parent, you will be asking for a will (referred to as Last Will and Testament), a durable power of attorney, and a healthcare proxy. Couples will double the request, as each spouse will have his or her own set of documents. You can expect that a single set of these documents will range in price from several hundred dollars to a few thousand, depending on the complexity of your requests.

If money is tight and you cannot afford a lawyer, you can do it yourself. This is only recommended if you have simple directives and your will is not likely to be contested. There are several websites that offer templates to help you write a will. Another cost-effective strategy is to put your plan together and then pay to consult a lawyer with questions you have.

Change of plans

When there is a significant change in your life, you should revisit your estate plan to update it.

“Parents should always keep their estate plan in the back of their minds and perhaps revisit it every couple of years to make sure it still meets their goals,” Donahue said. “If there is a change in circumstances, such as an increase or decrease in income, divorce, remarriage, death of parent, birth of a child, or something else that impacts your life, that would warrant revisiting the plans.”

She also noted that a change in the lives of your children might be reason to update your will. “A long-term injury or illness requiring perpetual care, a substance abuse problem, a spendthrift problem, for example — these are all possible reasons to revisit your plans,” she added.

Often, the hardest part of making an estate plan is getting started. With this eight-step guide, you will secure your will your way and protect the future of your family.

“Know your goals,” Donahue advises. “When in doubt, look at the plan and make sure it accomplishes your goals.”

*Name changed by request