Wills: February 2011 Archives

February 27, 2011

You Can't Give Away What You Don't Own

red car.jpgDear Liza: My husband and I lent my father our car after his was stolen. We continued to maintain the vehicle and it is still in my husband's name. My father made partial payments on it while he used it, but we'd paid for the first three years on the loan. Everybody in the family knew that if anything happened to my father, we were supposed to get the car back. My father recently died, and in his Will he left his property and his vehicle to my brother. Does my brother get our car?  You can't give away what you don't own. If the car is still registered to your husband, your father's Will certainly can't 'give' it to your brother. Your father's Will only applies to the property owned by your father at his death. This sort of situation is one of the many reasons that it's a terrific idea to write down interfamily loans and arrangements like this car loan--what 'everybody knows' sometimes changes after there's been a death in the family.
February 20, 2011

When Divorced Parents Disagree on Guardians

Will being signed.jpgDear Liza: What if divorced parents disagree on a guardian? In the case of joint legal custody, with visitation for one parent, are the wishes of the parent with physical custody granted, or does it solely depend on who dies first? Or does it also depend on which state? It is always unfortunate when divorced parents cannot agree on who should take care of minor children. I always encourage my clients to try and find common ground on that, at least. But here's what happens: the first parent to die isn't going to have a say in the matter in most cases. Unless there's some compelling reason not to let the surviving parent take custody (they are in jail; they don't want to take custody; history of abuse), the surviving parent will be in charge of raising the children. That parent's Will, subsequently, will control who is then nominated to be a guardian for minor children. If you have good reason NOT to want a divorced spouse take custody should you die first, you can put that information into your Will (which will be public after your death), or put it in a side letter to be opened only upon your death. If you are seriously concerned about this, please see a good estate planning attorney in your state, so that your estate plan can appropriately document your concern and your reasons for such concern.
February 13, 2011

Write that Will, Really

Will being signed.jpgDear Liza: My husband and I have two kids, aged 5 and 2. We don't have a Will or anything written down. Most of our friends don't either. Is that so bad? You know, I totally have sympathy for you. And, believe me, you are not alone. But here's the thing, you really, really should take a little bit of time and write a Will. It doesn't have to be elaborate. It doesn't have to be expensive. For less than the cost of a date night, you can go to www.nolo.com and  write a simple, effective Will that nominates guardians for your children and puts a simple plan in place to manage assets for your kids until they're old enough to manage those assets for themselves. You can go to the library and create a Will with a book for free. You can work with a lawyer and put together an estate plan. But, here's the thing: Without a Will, a judge would have to decide who to appoint as guardians for you children until they turn 18. Without any sort of plan in place, your children would inherit everything you've left to them (equity in your house, life insurance, and anything else youv'e managed to save) when they are only 18--which, honestly, is way too young, isn't it?

There are lots of reasons responsible, caring parents such as yourselves don't get this done. Procrastination is only part of it. There's also denial, exhaustion, not knowing who to pick as a guardian; not knowing how to do it, not knowing what to do. I recently wrote a longer blog at Mamapedia.com about exactly this that I think you'll find helpful. But whatever is holding you back, please commit to getting this done, soon. In an ideal world, it will never matter. But, if it does matter, the people you love the most will so appreciate your thoughfulness in planning ahead. Think of it like that car seat, those immunizations, those trips to the dentist--one more parental thing your kids need you to do for them.