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Feature/General
Do It For The Ones You Love
By Alec R. Hodson
June 2005

Parents willsAs any mother or father will tell you, the joy and wonder of parenthood come with their own sets of responsibilities: formula to mix, diapers to change, homework to supervise, sports activities to coach, boo-boos to help heal. And yet, as important as these tasks are, there remains one absolutely essential task that most parents of young children often fail to complete and that can have significant and permanent implications for the development, happiness and protection of their most precious assets, their children: to prepare a Last Will and Testament.

Despite its importance, even the best parents often fail to have a Will drafted. It’s an unfortunate but understandable oversight. Most parents have very little free time as they juggle their busy lives, caring for little ones, tending to careers, and trying to find time for each other. Even those who know they should have a Will tell themselves that they will get to it sometime soon. In addition, most parents are on a tight financial budget, and just trying to make ends meet each month leaves little money left to pay for a Will . Some may even jokingly ask themselves, why do we need a Will to direct who will inherit our debt? Most importantly, the joy, vitality and energy that children bring into parents’ lives provide them a state of mind where thinking about their own mortality seems untimely, depressing, and uncomfortable.

As unpleasant a task as it may seem, preparing a Will is something we do not for ourselves, but rather for those we leave behind. Setting aside the small amount of time it takes to prepare a Will and confronting now some important decisions about our children’s futures are two of the most important things that we can do for them. Losing a parent is a difficult experience at any age, and ensuring that your children will be taken care of emotionally, physically and financially in the event of your and your spouse’s death is very important. The arrangements you make now will both protect your children and, ultimately, bring a sense of relief to you and your spouse, knowing that your children will be well cared for should the unthinkable occur.

Before preparing a Will, decisions about who will serve as your children’s Guardian, Trustee, and Executor are the first and most important considerations every parent needs to make.

Guardian
The first, and often most difficult, thing you will need to do is select a Guardian. This person, or persons, will physically take custody of your children and care for them if something were to happen to you and your spouse. If you fail to do this, then the State will be forced to select that person on behalf of your children. Courts do their best, but they do not know your family like you do. With a Will, you are able to choose which relatives you would be most comfortable entrusting with your children.

Yes, this is a tough decision. Grandparents, aunts, uncles, older adult siblings, and family friends, are often good candidates for Guardian. Avoid conducting a popularity contest, and try not to name someone just to honor them or because you fear that their feelings would be hurt if they are not named. This is a disservice to your children. You should also select a back-up Guardian, in the event that your first choice cannot serve. The person or couple you name will be taking on a great responsibility. You may want to consider some of the following traits of a prospective individual or individuals when considering a guardian:

  • Your confidence in the Prospective Guardian(s);
  • The physical ability of the Prospective Guardian(s) to care for children;
  • Special time constraints that the Prospective Guardian(s) may have, such as work related travel;
  • Religious and moral compatibility with your values;
  • Other children that the Prospective Guardian(s) may have, their ages and potential compatibility with your kids;
  • The financial resources that you would have to provide for your children after your death; and
  • The financial resources and responsibility of the Prospective Guardian(s).

Trustee
Your next step in preparing a Will is to select a Trustee for your children. The Trustee is a person or persons whose job is to hold funds left to your children from your estate for their benefit and care and to protect these funds until your children are old enough to legally transfer to them what money remains when they reach maturity. Often, the Trustee you select will be the same individual(s) you name as Guardian, but you may select another person. Also, you may choose to name a bank’s trust department as Trustee. Some parents find that the individual(s) that they would most trust to care for their children are not the same individuals(s) that they would trust with the money or that they do not want to burden the Guardian with additional financial management responsibilities.

Executor
Finally, you need to select an Executor to carry out the directions you have set forth in your Will, complete the necessary paperwork following your death and complete the transfer of your estate.

The Guardian, Trustee and Executor all will have to work together as a group to carry out your wishes. Keep this in mind when selecting these parties. To make their jobs easier, you may want to leave specific directions in your Will detailing such issues as how you want your children raised, including issues such as faith, education, and other important factors. You also may want to leave specific directions regarding your funeral or other last instructions, such as making a specific gift to other people or institutions such as charities.

Remember, the State of Georgia has strict preparation and execution guidelines for the preparation and form of a Will, and simply writing your wishes on a piece of paper and signing it is not legally sufficient in Georgia and may not be legally recognized when you die.

Living Will
We have all been following the recent events in the news regarding the stress and confusion that can be created when someone becomes unable to make medical decisions for themselves. At the same time you have your Will prepared, you also may want to consider having a separate, related document prepared, often referred to as a Living Will or a Durable Power Attorney for Healthcare, which allows you to give specific directions in the event you become unable to make life or death medical decisions for yourself, and allows you to appoint a person or persons to make these decisions for you.

Do It Today
Given the importance of what’s at stake for your children’s futures, don’t wait. Make plans to have your Will prepared today. You’ll take comfort in knowing that once you finally get through the difficult process of discussing and preparing your Will, you can place it in a safe place and not worry about those tough issues anymore. Furthermore, and most importantly, you will have the knowledge that your children will be protected, and you can go on with your busy life and the real work and joy of raising and loving your kids!

Should I hire a lawyer to prepare my will?
Parents willsWills prepared by attorneys are much more expensive than the Do-It-Yourself variety. Georgia Law does not require that you use a lawyer to draft and execute your Will, and many people feel very comfortable doing some extra homework and drafting and executing their own wills. Depending on the complexity of your will, based on your individual circumstances, you may be able draft your own Will at a significant savings over the cost of using an attorney. Helpful resources are available at your local library, on the internet and at most large book sellers, such as Barnes and Noble or Borders. You will, however, want to be very careful that you are using a reputable resource which is tailored to Wills specific to your state, because every state has different requirements for a valid Will. For instance, in Georgia, two valid witnesses are required to sign your Will, but in Vermont, three are needed. Therefore, someone in Vermont would have an invalid Will, even if it would have been a valid Will in Georgia.

An attorney can assist you in making sure that all of the issues that need to be addressed in your Will are done so properly. In addition, he or she can check to ensure that everything is drafted so as to prevent increasing the cost and time needed to Probate your estate after you die, delaying the transfer of your property to your heirs according to your wishes. In addition, an attorney will ensure that executors, trustees or guardians of your Will are properly named and that the Will is fully valid and enforceable after your death. Sadly, many people create Wills themselves that are legally invalid and, sadly, never even know it. When they die and the Will is located, only then is it known that the Will was not enforceable. If the Will you draft yourself turns out to be invalid, then it is as if you never had a Will at all. While the cost of having a Will professionally drafted depends on the size and complexity of your estate, the customary fee rates for lawyers in your area, your lawyer's experience, and other factors, often the cost of a having a simple Will professionally prepared is less than a summertime monthly electric bill here in Northeast Georgia! Taking into consideration what is at stake, this piece of mind be well worth the investment.


Alec R. Hodson is an attorney in Athens with the firm of Russell T. Quarterman, P.C., specializing in Wills and Probate, Real Estate Transactions and Corporate Law. He lives in Athens with his Wife, Megan who teaches first grade, and their 14-month-old son, Simon. He can be reached at (706)543-7777, or emailed at arhodson@negia.net.


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