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."
