How do we decree custody of our minor child?
March 19, 2019 10:10 AM Subscribe
My wife and I want to draft a document decreeing what will happen if both of us die at the same time while our child is a minor. We'd like to avoid drafting two individual wills if possible. What is the best legal option for us? We'd like to do this online if possible. YNML, etc. Thanks.
The best legal option is going to be to consult a lawyer - this stuff varies from state to state. Wills, custody, and trusts are bread-and-butter items for many lawyers and shouldn't cost a whole lot to draw up.
posted by jquinby at 10:18 AM on March 19, 2019 [2 favorites]
posted by jquinby at 10:18 AM on March 19, 2019 [2 favorites]
Estate planning is essentially a "defense against the dark arts" of disgruntled heirs and debt collectors, so to help avoid opportunities for conflict and confusion, you can get a lawyer.
posted by Little Dawn at 10:19 AM on March 19, 2019 [1 favorite]
posted by Little Dawn at 10:19 AM on March 19, 2019 [1 favorite]
At the risk of going beyond strictly answering your question, make advance health care directives too. Adulting ain't much fun sometimes but it's a good thing to do. Many locales in USA have volunteer lawyer programs through local bar association, and provide services like this, if the problem is $.
posted by sheldman at 10:22 AM on March 19, 2019
posted by sheldman at 10:22 AM on March 19, 2019
when my husband and I were in similar situation (very simple estate but needed to specify child custody) we used a prepackaged, do-it-yourself will from Nolo Press, company which has an excellent reputation. As long as you just fill in the blanks and don't try to do more than the structure allows, you end up with something that will do what you need. The cost is quite low and keeping within the standard format means that you will have a more reliable, robust document than if you tried to do something custom.
posted by metahawk at 10:24 AM on March 19, 2019 [5 favorites]
posted by metahawk at 10:24 AM on March 19, 2019 [5 favorites]
Do It Yourself Estate Planning (American Bar Association)
Mistakes made in the drafting of such an important document can profoundly alter familial relationships, leaving our family members at best confused or disappointed and at worst locked in hostile litigation. [...] A Will must meet requirements for probate, properly make dispositions of the estate, address the payment of debts, taxes and other obligations, appoint fiduciaries to administer the estate and potentially guardians for minor children, and achieve all of that without creating litigation or hostility among the beneficiaries. A person who drafts his own Will must bear in mind that the critical test of his efforts will occur after his death. At that point, his voice has been forever silenced. If he does prepares his Will on his own, it’s likely no one -- or at least no person who is not seen as biased due to his financial interest in the outcome -- will be able to explain his intentions. [...]It is possible to use online templates to create a draft for an attorney to review, and then get clear guidance about how to properly witness and sign the will according to the laws that apply in your jurisdiction, as noted by the ABA:
Will Your Document Survive Probate? Different states have adopted rules as to the probate of Wills. Some are more complicated than others, but the person drafting a Will should know them. For example, New York law creates a presumption of validity of a Will if it was executed under the supervision of an attorney. New Jersey law imposes a presumption of “undue influence” if a Will benefits a person who stands in a close (“confidential”) relationship with the person who died. An independent attorney may be the most important witness in rebutting such a presumption (if not rebutted, the Will can be declared invalid).
Moreover, the individual should bear in mind his own ability to reduce the cost of estate planning by preparing for the initial meeting. This would include, for example, preparing a full list of all assets and liabilities, a detailed evaluation of potential beneficiaries, the collection of relevant documents (deeds, beneficiary designations, prior Wills, property valuations and perhaps other documents such as divorce decrees and the like). Taking the time to do that homework before the initial estate planning consultation can reduce costs.posted by Little Dawn at 10:41 AM on March 19, 2019
We'd like to avoid drafting two individual wills if possible
I'd encourage you to rethink that. The wills for a couple are going to be almost identical and will therefore cost almost no more lawyer time to get done than a single will, and are also very much a standard line item for pretty much any local lawyer so they're a well tested path of least effort.
If you actually have enough stuff to make drawing up a will worthwhile at all, you have enough stuff to spend a couple hundred on making sure the job gets done right.
posted by flabdablet at 10:42 AM on March 19, 2019 [3 favorites]
I'd encourage you to rethink that. The wills for a couple are going to be almost identical and will therefore cost almost no more lawyer time to get done than a single will, and are also very much a standard line item for pretty much any local lawyer so they're a well tested path of least effort.
If you actually have enough stuff to make drawing up a will worthwhile at all, you have enough stuff to spend a couple hundred on making sure the job gets done right.
posted by flabdablet at 10:42 AM on March 19, 2019 [3 favorites]
We used Willmaker. I found it easy and thorough; however, I am not a lawyer. (I later purchased Willing; it was basically useless for anyone with a child because it does not allow for the creation of testamentary trusts.)
Of course estate lawyers are going to say that we should use them rather than software, both because they profit from it and because they are much more likely to deal with cases where problems arise. That doesn't mean they are wrong. More background in this NY Times article. I think it also depends on whether you expect any conflict: E.g., in a case where you fear that two sets of grandparents would fight for custody, you might want to check with a lawyer.
I'd suggest using Willmaker first. After you're done, you can always hire an estate lawyer to review it.
posted by Mr.Know-it-some at 10:53 AM on March 19, 2019 [1 favorite]
Of course estate lawyers are going to say that we should use them rather than software, both because they profit from it and because they are much more likely to deal with cases where problems arise. That doesn't mean they are wrong. More background in this NY Times article. I think it also depends on whether you expect any conflict: E.g., in a case where you fear that two sets of grandparents would fight for custody, you might want to check with a lawyer.
I'd suggest using Willmaker first. After you're done, you can always hire an estate lawyer to review it.
posted by Mr.Know-it-some at 10:53 AM on March 19, 2019 [1 favorite]
I think it also depends on whether you expect any conflict: E.g., in a case where you fear that two sets of grandparents would fight for custody, you might want to check with a lawyer.
This varies by state, what you have to do. Also the conflict thing is the other big thing to my mind. Simple wills are for simple situations. Which might even include something where you and your spouse die at the same time. But does NOT include situations where multiple people would argue for custody of your child. So think about your situation and also be open to changing up the plan if your life situation changes. My partner has a kid with an iffy-custody situation and he used LegalZoom and decided he is okay rolling the dice. There are all sorts of people in the world.
posted by jessamyn at 11:15 AM on March 19, 2019
This varies by state, what you have to do. Also the conflict thing is the other big thing to my mind. Simple wills are for simple situations. Which might even include something where you and your spouse die at the same time. But does NOT include situations where multiple people would argue for custody of your child. So think about your situation and also be open to changing up the plan if your life situation changes. My partner has a kid with an iffy-custody situation and he used LegalZoom and decided he is okay rolling the dice. There are all sorts of people in the world.
posted by jessamyn at 11:15 AM on March 19, 2019
Check with your employers to see if they offer legal insurance that includes will creation. For us, paying for that for one year for the express purpose of getting the will done was worth it financially. After going through it with a lawyer, I think it would be hard to execute exactly on one's own.
posted by LKWorking at 11:16 AM on March 19, 2019
posted by LKWorking at 11:16 AM on March 19, 2019
You should talk to an attorney. When we did this we learned that in the absents of both parents the minor children become wards of the court and would remain so until the age of 18. The judge will look at your wishes but there is not guarantee they will be carried out.
posted by tman99 at 11:48 AM on March 19, 2019 [1 favorite]
posted by tman99 at 11:48 AM on March 19, 2019 [1 favorite]
"Of course estate lawyers are going to say that we should use them rather than software, both because they profit from it"
Online Wills and people not having Wills are job security for estate planning lawyers.....
Of course your online Will "works"...you haven't taken it to probate while you are living so it hasn't been tested.....
posted by WinterSolstice at 11:48 AM on March 19, 2019 [2 favorites]
Online Wills and people not having Wills are job security for estate planning lawyers.....
Of course your online Will "works"...you haven't taken it to probate while you are living so it hasn't been tested.....
posted by WinterSolstice at 11:48 AM on March 19, 2019 [2 favorites]
I found Plan Your Estate by Nolo very helpful. Even if you go with a lawyer bring pre-informed about the lay of the land is time and effort saved. The book contains an entire chapter on children's care if both parents pass.
It's revised every 2 years but mostly for the tax sections. I borrowed the 14th (latest) and the 13th editions from the library and most chapters were unchanged.
posted by llin at 2:14 AM on March 20, 2019 [1 favorite]
It's revised every 2 years but mostly for the tax sections. I borrowed the 14th (latest) and the 13th editions from the library and most chapters were unchanged.
posted by llin at 2:14 AM on March 20, 2019 [1 favorite]
As with many askmetafilter questions, the easy answer is the least-risk answer (ie, see a professional). However, if things aren't likely to be contentious, an online template is what I have known people (who had been attorneys) use. My husband and I each have wills from an online template where we had to change very little for each of us as individuals.
PS - Be sure your important people will know where to find them!
posted by ldthomps at 11:49 AM on March 20, 2019
PS - Be sure your important people will know where to find them!
posted by ldthomps at 11:49 AM on March 20, 2019
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posted by praemunire at 10:17 AM on March 19, 2019 [5 favorites]