Why You Need A Will

What None of Us Wants to Face Ö and Why We Must!

By Patti Paniccia

More than half of the people who die in the United States each year do so without a will. Why? Perhaps they do not want to face the eventuality of death, or even if they intend to write a will, they postpone it because they think it will be expensive and complicated.

Whatever your reason for putting off this important task, now is the time to do it. A will does more than just distribute your belongings after death. It can also determine the ultimate quality of your childís life.

Who Will Take Care of My Children?

When it comes to your childrenís welfare, you will be designating a person or persons to fulfill two different responsibilities. One entails taking care of your children; the other involves taking care of your assets on your childrenís behalf. Itís not unusual to choose one person to take care of the children, and another to watch over your assets on behalf of your children.

Guardian of Your Children

In almost all cases, custody will be given to a surviving parent, if one exists.

"Itís unusual for a court to ignore the natural parent," says Belcher. A rare exception is if a court determines that person to be unfit, which might occur if the person is using drugs or has been convicted of child molestation or other serious crimes. Also, in some cases, a surviving parent may be fit, but unwilling to assume the responsibility.

If custody is not given to a surviving parent, or if there is no surviving parent, then a court will look to your will for guidance as to whom it should appoint as guardian of your children. Although courts arenít bound to choose the person youíve selected, they almost always do.

If there is no will, any number of people in your life can step forward and ask the court to be appointed as guardian. Sometimes this causes a contentious legal tug-of-war with your children caught in the middle. Inevitably, the court will hold a hearing to determine which potential guardian would serve the best interests of the child. During the weeks or months leading up to the hearing, the court usually allows the child to remain in the care of whomever provides the most continuity in the childís life.

The guardian of your children will have the responsibility of taking your children into his or her home and raising them. You should designate someone you believe will give them the love and attention they will need growing up. Charles Nelson, who teaches wills and trusts at Pepperdine Law School, cautions, "When youíre choosing a guardian, you really want someone who has values that match your own so that your child will be brought up in a home where you feel comfortable with the training and the parenting theyíll get."

Itís also important to realize that a guardianís spouse will play a significant role in the upbringing of your children, so itís crucial that youíre comfortable with him or her as well.

Before designating a guardian, you should make it clear to the person youíve chosen what you would expect of him or her, and make sure the potential guardian and his or her spouse are willing to accept that responsibility. Never appoint someone with whom you havenít fully discussed this (see "Choosing a Guardian" for some factors to consider).

Finally, know that it is acceptable to change the person or persons youíve designated as guardian or trustee should circumstances change at some point. For instance, as your children grow older you may realize that they require a different kind of parenting than you originally anticipated, or perhaps the person you originally chose is now deceased or has substantially changed his or her lifestyle.

Guarding Your Assets

If you are married to the natural parent of your children, have absolute trust in your spouse and possess few assets, then itís probably easiest to use a simple will, with each spouse leaving everything to the other. Itís inexpensive and less cumbersome than other options. Under this plan, your spouse will assume custody of the children, and whatever you both own will be transferred into his or her name. In fact, this might be your only choice for property you hold in conjunction with your spouse since it would usually be transferred solely to your spouse upon your death.

If youíre not comfortable with this plan, and you have assets that you own separately from your spouse, then you must choose someone who will take care of the assets on your childrenís behalf -- either a "guardian of the property" or a "trustee."

In many cases, this would be the same person who has the responsibility of taking care of the children, but it doesnít have to be so. For example, if you are divorced and your ex-spouse receives custody of the children, you may not want that person to be guardian over your assets, unless you enjoy a strong, trusting relationship with that person.

Be sure to consider the financial skills of the person you are selecting. "When youíre talking about managing a childís estate, then youíre talking about a whole different set of skills, such as the ability to manage money and to make financial decisions on behalf of the child," Nelson says. "All that isnít necessarily the same as parenting skills."

Trusts, Costs and Resources: Click here to continue.

See also: Choosing a
Guardian for your Children

Patti Paniccia is a lawyer and a former CNN correspondent. She teaches ďGender and the LawĒ at Pepperdine Law School in Malibu, Calif., and is the author of Work Smarts for Women: The Essential Sex Discrimination Survival Guide, which can be purchased at a discounted rate on her Web site,