Using a Will to
Protect Your Family
Find out how your will can protect your family, who is covered and how to name beneficiaries and guardians
 
Spouses

Why does my spouse need a separate will?

A will reflects an individual’s wishes.  Both you and your spouse need your own will.  Usually the wills are similar. Typically, the one spouse gives 100% of their assets to the other spouse and vice versa.  If your spouse dies before you, your assets are split equally among your children. 

My spouse and I have lived separate lives for years but never divorced, when I die will she still be considered my spouse? 

Yes.  Unless you legally divorce, they will still be considered your spouse and therefore entitled to benefit from your estate.

I am not married to my partner; how do I refer to them in my will? 

You can refer to them however you wish:  partner, friend; girlfriend/boyfriend.  The way you refer to them has no legal significance.  You protect them by providing for them in your will and empowering them to act for you in other estate planning documents like a heath care proxy and power of attorney.

Is it possible to disinherit your spouse? 

It depends upon your state but for most states you cannot completely disinherit your spouse unless you have an enforceable pre-nuptial or post-nuptial agreement.

Children

Why do I have to nominate a guardian?

If you have minor children, it is important that your will state who you want to serve as your children’s guardian.  If you do not nominate a guardian, the court will appoint someone without any input from you. 

Does the court treat minor children differently than adult children?

Yes, the legal system protects those who cannot protect themselves like minors and adults who lack capacity.  The court seeks to make sure that the minor child’s inheritance is protected until they become adults.  If it is a small inheritance, generally the court allows the child’s guardian to manage it.  The court views adult children as capable of taking care of themselves and their assets.

What is the difference between a guardian and co-guardian?

There is no legal difference.  When there are co-guardians each has the same authority.  Because of this, it is imperative that co-guardians get along.  Like a marriage, when there is a disagreement between the co-guardians, they must either resolve it or seek court intervention.

How many successor guardians should I name?

Gentreo allows you to name a first choice and two successor guardians.  Any of these can be co-guardians, so up to six people.  It is up to each individual to decide how many guardians they want to name.  Again, the purpose of nominating guardians is to give the court guidance as to who you would want to take care of your children, if you die.

What happens if I have an adult child with special needs? 

All the more reason to do estate planning!  You need to create a plan so that your child is protected; cared for and financially secure when you die.  Actions you can take include to nominate a guardian/conservator for the child and establish a special needs trust.  This trust could be funded by a provision in your will or you could fund it while you are still alive.

What happens if my child dies before me?

If your child dies before you, his share of your will passes to his children.  If he never had any children, his share is distributed among his siblings.

Are stepchildren considered children under my will? 

No, stepchildren are not considered your “children” unless you have legally adopted your stepchild.

Can I exclude children from my will? 

Generally, yes you can exclude children. If you want to exclude a child or children, it is important to list their names in the will so they cannot claim they were mistakenly left out.

 
 
 
 
 
 
 
 
 
 
 
 

IN-DEPTH

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