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The Patriot Ledger

ray madoff

April 17, 2004
If You Have Children, You Should Have a Will

By Jody Feinberg

Gina Vita had a will drawn up right after she became a mother. Not that she expected to need it, but she didn't want to hurt her child by her oversight.

"I realized that if something were to happen, my child needed to be provided for," said Vita, 38, whose children now are 7 and 10. "I wanted to make sure there would be continual support."

Vita, who lives in Hingham, is a minority among parents. Legal experts estimate that though responsible in other ways, three-quarters of American parents gamble that they won't die young and leave their minor children orphaned or with just one parent.  So they don't write a will. That omission can compound the tragedy of unexpected death, say legal experts.

"The vast majority of Americans die without wills," said Ray Madoff, professor of law at Boston College Law School. "I talk to my students about how they need to impart to their clients the importance of having a will, no matter how reluctant they are. The only way to speak to the court (after you die) is through your will."

Many parents mistakenly believe they can talk to the court by simply writing their wishes down or telling them to a relative, said Attorney Nicole Cox of Weymouth.

"There is no such thing as a handwritten will in Massachusetts," said Cox, a partner in the Canton firm of Mazonson & Cox and the mother of four young sons. "It has no legal standing."

Without legal standing, the court will speak for parents - in ways that may not be good for your children or relatives, say legal experts.

"A lot of people assume that the (judicial) system will work for them, but the Massachusetts system doesn't take care of families the way it should," Madoff said.

A will, in essence, ensures your children are taken care of. Its primary purpose is to select guardianship -  a guardian "of the person," to raise the children, and a guardian "of the property," or trustee, to manage the assets. The same person can do both or the responsibilities can be divided between two people. Addressing this can spare a surviving family a lot of stress, and minimize conflict about custody and distribution of assets, Vita said.

"If someone passes away surprisingly, the family is left to scramble about what they should do," said Vita, who recently was president of the Hingham Mothers Club. "It's so much easier if they know what your wishes were."

Without a will, a surviving spouse can face financial difficulties providing for the children. That's because in Massachusetts the spouse gets only half the assets (children get the other half) and requires the spouse to preserve the principal in the child's share until age 18. That greatly limits the money available to raise the children.

"This was a big big problem in connection with 9/11, because there were so many young families and very few of them had wills," Madoff said. "Now they're finding that they're hampered by this guardianship provision and they've been pushing for a change in legislation."

With a will, however, a parent can pass all the assets on to a spouse, who can spend them on the children.

The difficulty of choosing a guardian is the main reason people say they don't make a will, say legal experts.

"It's incredibly difficult to imagine someone else raising your children and it can be a painful decision for people to make," Madoff said. "Another reason people don't write wills is that they don't want to spend money or reveal personal information for something they hope they never need."

In choosing a guardian, Cox advises clients to pick someone who shares their values, is most likely to raise  the kids in the way they would raise them, and willingly will assume the responsibility. Siblings usually are better choices than grandparents since they can be expected to live longer and provide more stability.

"Parents shouldn't take into account finances very much, because the guardian will be able to use the (inherited) funds for the children," she said.

Vita said she knows families who have trouble selecting a guardian, but said the decision was easy for her and her husband, even though they each have many siblings. They chose her husband's sister and her husband, who live in Ohio, to care for the children.

"They also have two children and we vacation with them every summer and we love their parenting style," Vita said.
Jane Miller, a children's librarian in Quincy, wrote a will many years ago to make sure that her six children would remain together if she and her husband died. Her brother and his wife, who had no children at the time, agreed to care for them.
"It was very important for me to keep them together," she said. "I didn't want some with my husband's family and some with mine."

Now a widow, Miller also used the will to stipulate how her children could use their inheritance once they became age 18. That provision is called a trust, which can be done as part of a standard will or as a separate living will. Each approach has different advantages, so it's helpful to discuss the pros and cons with an attorney.

"I'm not giving them money to go spend it at Abercrombie and Fitch," Miller said. "They have to finish their college education, or the girls can use the money if they're getting married.  They can get the money to buy a house or pay college loans."
Creating a trust is a wise decision, say legal experts. With a trust, you can designate how much income children should receive at each age.

"If you don't put your property in trust for the kids, the property goes outright to them at age 18," Madoff said. "That's not an age when people are known for their sound decision-making."

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