When there is a will, there is a way: Protect your children with a last will and testament

Updated 8/30/2013

My husband and I recently had our wills drawn up. We are young and healthy, so why worry? Because our children are worth it. I learned that pretty much anything can happen to your kids if you and your spouse die unexpectedly. They could end up being raised by someone you would never choose. Rather, a judge who doesn't know you or your family gets to choose their fate. Sure, they go to your self-centered sister who's never cooked a meal in her life, and when she and the children overcome their differences and learn to work together, it becomes a heartwarming novel some day, but that's not the reality you want for your kids.*

If just one of you kicks the bucket, those unspoken wishes can cause rifts in the extended family that may never get repaired. You don't want your in-laws fighting over your spouse's assets in the wake of his or her death. A lot of people assume that if their spouse dies, they will automatically get the house and the car and anything else they consider valuable, but the reality is that you could end up a single, homeless, car-less parent unless these things are explicitly stated in a legal document.


We had considered taking the easy way out and filling out one of those free online wills, but our lawyer informed us that they are not considered legal documents, and a judge will still have say over what happens to your family regardless of what you write in them. They're nice in that they let people know what you want post-mortem, but no court is going to take them seriously.

I'm no legal expert, but I will do my best to explain what I learned from "our lawyer" (I feel so adult-ish saying that). She was thrilled to see a young couple in her office--she says that most people don't even consider wills until they are much older, when the reality is that life is unpredictable. Period.

When we met with her, we told her our wishes and listed our assets, and she suggested an "I love you" will, which she explained as "Dear husband/wife, I love you so much that I want you to have everything if I die." It is the simplest will because we are young and don't have many assets. In it, we named who we would like to raise our children in the unlikely event of our early demise. We also specified that our money will go into a trust for our children. Pretty simple.

An interesting thing that I learned is that your child doesn't have to inherit your money outright--it can be put in a trust until they are X years old. It is wise to name someone other than the children's guardian to manage the trust. For example, your aunt may end up raising the kids, but your financially savvy brother manages the trust. That way, the trust money isn't slowly trickled away by small purchases over the years or spent on a sports car instead of college. 

Tip: Think about who you would want to raise your children before you meet with a lawyer. You may love your mother and think she'd be a great fit, but will she be 85 when your kids graduate from high school? Will your kids end up taking care of her? Also, talk to the people you have in mind for your healthcare proxy and trust management ahead of time. I ended up texting my brothers from the lawyer's office because I forgot to call them to discuss their involvement beforehand. Don't be like me.

You can also specify who will take care of your pets, which we did.

Interestingly, funeral arrangements are not included in a last will and testament. If you have very specific ideas about your send-off (who doesn't want to go out like a Viking, drifting into the sunset on a burning boat?), write them in a separate document and store them in a fireproof box along with your will. Make sure someone close to you knows what your wishes are and where to find the written instructions. 

Other documents that we filled out include:

• A general durable power of attorney. A durable power of attorney allows my husband and I to act on each others' behalf if necessary. For example, if I'm sunning myself on some beach in a far-off land and my husband needs to get into my safe deposit box back home, he may do so.
• A state-issued healthcare proxy. This document simply allows my husband to make healthcare choices for me in the event that I am incapable of making them on my own. Interestingly, as I prepare for the birth of my second child, I showed the attorney the healthcare proxy that the hospital sent me in my pre-registration packet. She said DO NOT fill it out. It is not considered a legal document (at least in Massachusetts), and hospitals have no authority to issue healthcare proxys. I will be bringing a copy of my official proxy with me to the hospital.
• Living will. In this document, I give my husband the right to pull the plug if there is no hope for me.
• Patient authorization. This allows any physicians or healthcare providers to share information about my treatment with my husband. If he is concerned about my health and wants to call my physician to discuss it, my physician has permission to share test results and other information related to my care.

As long as we update the wills as our lives change (our attorney does small updates for free, but will charge if she has to write the whole document over again), they will be good for the next several decades. When we get older and acquire more assets, and the threat of health issues looms in the future, we may need to draw up new wills to address the current reality.

Although the consultation was free, expect to pay over $1,000 to draw up a last will and testament and related documents--a small price to pay to ensure your family's wellbeing.

*Apologies to my sister who read this and thought I was talking about her. For the record, she is thoughtful and cooks all the time. All familial examples in this post are fictional.