Why every parent needs a will

According to Trust & Will and annual national surveys conducted by Caring.com, more than 60% of parents with children under the age of 18 do not have a will.

“A will is important because it’s the document that allows parents to make a legally effective nomination of a guardian for their child if something happens to them while their child is a minor,” says Megan Gebhardt, Seattle mom and owner of Gebhardt Law Office. “Wills can also protect assets in the event a parent passes away and can ensure assets are used according to a parent’s wishes by providing financial support for minor children and protection from a child’s misjudgments or immaturity.”

“If a parent doesn’t have an estate plan when they pass, there are default laws and procedures that control who becomes the guardian of their minor child and to whom their assets pass,” Gebhardt adds. 

Some scenarios

Seattle estate attorney Meghan DeSpain concurs. 

For example, DeSpain provided an illustration of how a will determines the future of a child based on the parent’s wishes: The parent dies, but their closest family members reside across or outside the country. The parent prefers that their child remain in their school and community under the care of close friends rather than having their life uprooted. 

DeSpain noted another, more common scenario in which a will protects children:

“A surviving spouse is the primary heir. However, if the spouse is not the parent of your children, some or all of your estate could go to your spouse and bypass your children.” 

Unmarried parents

Having a will is especially important for unmarried couples with children. 

In Washington State, a father’s name is not automatically added to a child’s birth certificate if the parents are unmarried. In that case, both parents must sign a Voluntary Acknowledgement of Parentage (VAP) to have the father’s name added, a step that is often overlooked or put off in the excitement and hard work of early parenting. If a father’s name is not on the birth certificate, their guardianship of a child can be secured in the legal parent’s will.

Hiring a lawyer vs. doing it yourself

Experts urge parents to think twice about do-it-yourself estate planning. While forms are widely available, most estate planning forms do not take into account the constantly changing estate tax laws and do not ensure consistency between estate planning documents. It may be less expensive in the long term to have estate planning documents prepared by an attorney.

It’s essential to note that your will and other estate documents must be executed properly to be legally effective.

Who will receive your assets?

When there is no will, the court divides a decedent’s assets according to the “law of intestacy.” These laws divide property in a manner that the state legislature assumes most people would prefer. However, the state’s way of dividing property may not align with your hopes or values.

For example, Washington law provides that children receive property and funds left to them upon reaching the age of 18. Many parents do not believe that their children are prepared to receive their full inheritance at such a young age. A will with a testamentary trust allows funds to be distributed over time, or to be distributed only for specified expenses, such as college tuition. 

Using this estate planning tool will enable you to direct how you would like your funds to be distributed and ensure that they benefit your child in the long term.

Perhaps you would like to make a bequest to a charitable organization, a friend, or a specific relative. Writing a will also allows you to do this. In a will, you will determine how much of your estate you would like to go to each individual or organization. You can make bequests of specific amounts, or a particular percentage or fraction of your estate.

A will gives you the ability to designate who you would like to receive specific items of real or personal property. Do you want to be sure that your daughter receives a cherished piece of jewelry? A will lay that desire out clearly.

Who will care for minor children?

Most parents have strong opinions about who they would want to care for their kids if they were unable to do so. Without a will, the court will determine a child’s guardian if both parents die. That person may or may not be a relative.

When you identify in your will who you would like to be your child’s guardian, the court will confirm that individual as guardian after ensuring the person is over age 18, has the mental capacity to serve as a guardian, has not been convicted of any felonies, or is not otherwise unfit to care for kids. 

How do you get started?

One of the first steps is to start thinking about the unthinkable – what if you suddenly passed away? Whom would you like to receive your assets, and whom would you like to care for your children? You might start by making a list of all of your assets – your home, bank accounts, valuable personal property such as art, and anything else you can think of. 

Next, brainstorm about whom you would like to receive the items on your list, and how you would like your property managed for the benefit of your children.

Next, most importantly, think seriously about whom you would like to designate as a guardian for your children. For most couples, this is a decision made together, with both parents nominating the same guardian. Check with that person, do they have the will and capacity to nurture and love your children to adulthood?

You may also designate an alternate guardian if the guardian you name is unable or unwilling to care for your children.

Finally, you will need to select someone as your personal representative, also known as the administrator or executor of your estate. Your representative is the person who will oversee the distribution of your assets and make sure your wishes are fulfilled. If your estate plan includes a Children’s Trust, you will also need to designate a trustee. The trustee will be responsible for ensuring the disbursement of funds according to the terms of the trust that you have established in your will.

Your will means your way

For Gebhardt, who has done several free will and estate planning sessions workshops for the Seattle-based parent support organization PEPS, have legal a will and estate documents means parents can rest easier knowing that their children and family will be cared for and will likely not have to be boiunced around or experience a legal battle in the event of their death.

“I view dying without a will as giving up agency over these important decisions,” says Gebhardt.

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