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How to write a will for child custody


How to Write a Will for Child Custody

Estate planning documentation like wills and trusts usually direct how you want assets allocated at you passing and identify the individual responsible for managing your affairs. For parents that have younger children, there is an even more important reason to deviser such documentation: appointing a guardian to have physical custody of younger children, should neither parent be unable to care for them. When parents don’t take this action and pass away devoid of any estate-planning records, courts must determine who is going to have guardianship over the younger children. The individual eventually granted custody might not be the individual the parents wanted to have chosen for that role. Follow these steps to devise a legal will that records your wishes for guardianship.

  1. Carefully examine options for guardianship.

It’s not easy to think about someone other than you raising your children, but a portion of the estate-planning process includes planning for worst comes to worst scenarios. Consider the individuals in your life, and in your children’s lives, that could possibly step in as guardians should the need come up.

A lot of individuals decide on a parent or a sibling, but you could also appoint a close friend. You can also appoint a contingency in the will. For instance, the document could say “I appoint A as guardian. If A is unable or unwilling to serve, I appoint B as guardian.” Don’t forget that when you appoint a guardian in this document, you state your wishes in legal paperwork. Nevertheless, you cannot force and individual to serve as guardian. Appointing one or more possible guardians could help guarantee you have a say over who raises your children, even if your first choice is unable to take on or refuses that responsibility when you pass away.

  1. Devise your will.

When you have chosen on the individual you want to appoint as guardian, you need to include specific terminology in your will. Laws governing these issues are not uniform throughout the country, so be sure you understand what your state requires to impact legal guardianship appointments.

When your situation is somewhat simple, you can devise your will by yourself or use a trustworthy legal service provider to devise one. On the other hand, you can work with a licensed estate-planning or general practice lawyer in the state you live in.

  1. Follow your state’s legal protocols to carry out your will.

Following you creating your will, follow your state’s required legal protocols to make the document active. In a lot of states, a minimum of two capable adults need witness your signature. In many states, individuals creating wills are required to have three witnesses. You might also have to sign the document in the presence of a notary public.

  1. Be sure people know you have created a will.

After signing your documents, it is wise to make sure your personal representative (also known as the executor) appointed in your will knows where to locate the document. You might also decide to let you’re appointed guardian and any appointed successor or alternate guardians know you appointed them in the documents. Think about having those discussion prior to you creating the document, since you might discover the individual, you want to appoint simply is uncomfortable assuming legal responsibility for your child.

When you are the parent of a younger child, consider carefully about who you would want to look after your children when you pass away. Including this information in the will, adhering to state laws, and informing those appointed about your decision can guarantee that a plan is in place for your children that require a guardian.

Source:

  1. DeRuyter, C. (2018, June 25). How to make a will legally binding regarding custody of children. LegalZoom. https://info.legalzoom.com/article/how-make-will-legally-binding-regarding-custody-children.

Our child custody and guardianship attorney in Phoenix and Scottsdale will advance your case with concern and personal attention and always have you and your children’s best interest in mind when offering legal solutions.

An experienced family law attorney will work with you to obtain the best possible outcome in your situation. We advocate for our clients, so they have the brightest future possible. Give us a call today at 480-999-0800 for a free consultation.

 

Jennifer Moshier, Scottsdale Divorce Lawyer

How to Write a Will to Protect Baby’s Future

Fact: Creating a will likely won’t be as much fun as putting together a baby registry. But it just may be a more essential step on the road to becoming parents. Don’t have a will yet? There’s no wrong time to write one, and writing a will as soon as possible, especially once you have kids, can help make sure your children will be provided and cared for exactly how you wish in case you or your partner were to die. And while creating a will can be a simple process you do digitally, it’s not something you want to do in a time crunch. Many parents find having a will on hand give them peace of mind when traveling without their children, when leaving their children with grandparents or babysitters overnight, or just to check off their to-do list. To make the whole prospect a little less daunting, we’re breaking down the steps you need to take and the things you need to consider when creating a will.

In this article:
What goes into a will?
How to write a will
How often should a will be updated?

What Goes into a Will?

One of the more daunting things about writing a will is knowing what, exactly, a will contains. Elements of a will include:

• The will itself. This lays out how you plan to divide your property after your passing.

• Guardianship documents. These state who you want to care for your child (and how) in the event you were no longer there.

• A healthcare proxy. Also known as a living will, this dictates how you would like medical decisions handled if you weren’t able to make them yourself.

• A power of attorney. This stipulates who can act on your behalf in legal or business affairs while you’re still alive.

Having a legally binding will on hand (read: not a handwritten list scribbled out on a legal pad) can help your survivors avoid probate, a complex and time-consuming legal process that determines how your assets are distributed to survivors. In addition, a will that names guardianship for your children can ensure that they’re taken care of by the people you think would be the best fit—not by people appointed through the court.

If you have a very high net worth or have specific concerns related to guardianship—say, you’re the parent of a special-needs child or are already the guardian of a minor or someone who can’t look after him or herself—working with an attorney may make sense. But today’s cutting-edge tech platforms make it possible to create a legally binding will without working one-on-one with an attorney. Knowing that writing a will can be done from your laptop when your kids are (finally) asleep can make it easy to actually check this important to-do off your list.

How to Write a Will

Writing a will can seem like an off-putting task, but it doesn’t have to be stressful. Trust us—knowing exactly what you need to do to get it done will make it feel all the more manageable. So let’s get down to brass tacks: Here’s how to write a will, step by step.

Wondering if you and your spouse should make a joint will? Your wills may be exactly the same, but even if you have the same wishes, it’s smart to create separate wills. If one of you were to die, it can be a legal challenge to change anything stipulated in the joint will.

Step 1: Establish your wishes

Before writing a will, it’s important to have a few key conversations (which may be ongoing) with your partner to go over your assets, your wishes, your hopes for your children and your preferences surrounding healthcare. While these topics may sound heavy for a Friday night date night, these discussions can prove invaluable and help ensure you’re on the same page, both for the future and for right now.

Guardianship

Probably the most pressing question is who you would want taking care of your children if both of you were to die. Deciding on a guardian can be an emotional conversation, and while you don’t need the guardian’s permission or approval to name them in the documents, it’s a smart idea to ask them. It’s also a good move to let relatives know if they’re not being named guardian, especially if they expect to be. For example, say you want your sister to be named guardian of your children because she has similarly aged kids and lives nearby. If you feel your parents would be hurt by this decision, letting them know now can stave off pain if the worst were to happen.

Assets

Next up is to figure out your assets. Do you own a home? A car? A Beanie Baby collection? No matter how silly or minor, naming beneficiaries for assets can eliminate pain, confusion and grief. If you’re married, it may make sense to leave everything to your spouse if you were to die, and your spouse to do the same for you—but make sure you name someone else as well, in the event that you were both to die.

Many parents of minor children become confused as to how to leave assets to their children in a will—after all, it’s not like a toddler can exactly be a homeowner. In general, parents who wish assets to go to their minor children appoint someone called a “guardian of the estate.” This person, who may not be the same as a legal guardian (but can be), would be responsible for handling any assets until your child comes of age. For example, if you name your sister as a guardian for your children, you can also appoint your numbers-minded mother as a guardian of the estate.

Healthcare proxy

Would you want extraordinary or invasive medical interventions in the case of illness or accident? What are your thoughts surrounding organ donation? If you weren’t able to advocate for yourself, who would you trust to make medical decisions? All these questions can come into play when drafting a healthcare proxy or living will. Remember, there are no right answers, but mulling over these what-ifs now can ensure that your wishes would be followed. This conversation is also a good one to have with your healthcare proxy; even if it’s written down, talking through it now can give you the time to share your thoughts and wishes in a more nuanced way than is possible on paper.

Step 2: Fill out the documents

The conversations and thought processes surrounding making a will are the hard part. Now comes the easy part: Creating a legally binding will. Services offering online will templates can digitize what used to be done in an attorney’s office, guiding you through a question-and-answer session to determine the needs of your family. Not only does it make the process much easier, but it can also be significantly cheaper. Willing—the world’s number one estate planning site—has estate planning packages that begin at $69 and offer documents including a last will and testament (which includes naming guardians and naming the executor of the will), a living will, a durable power of attorney, a transfer on death deed and a revocable trust. You don’t need a lawyer to review your documents before submitting them—instead, the online will software guides you through every step of the process.

Step 3: Sign the documents

Once you’ve made a will, pay close attention to how it becomes binding, especially if you use a digital service. Some services, like Willing, offer an e-signing option, where the will can be notarized and signed entirely online. (How easy is that?) Otherwise, you may need to print it out and sign it in front of a notary.

Wondering where the will should be kept? Some families like to keep a hard copy in a safety deposit box, while others store it digitally. No matter what you choose (best practices may depend on the type of will service you use), it’s important to let family members know that one exists and where and how to access it. It also may be a good time to ask them if they’ve made a will of their own.

How Often Should a Will Be Updated?

If you’re still growing your family, you likely want to update it when you have another child. You also may need to update your will if someone named in the document passes away or if you buy property or inherit assets.

A will used to have to be updated via a document called a codicil—but the benefit of using an online will template is that you can edit your will after life events. In any case, it’s smart to review your will either after any major life event or about every two years.

Published September 2018

TESTIMONIAL APPOINTMENT OF A GUARDIAN OR TRUSTEE

Issue 4 (10) 2010

UDC 347.64

S.I. Reutov

PhD in Law, Professor of the Department of Social Work

Perm State University. 614990, Perm, st. Bukireva, 15

E-mail: This email address is being protected from spambots. You must have JavaScript enabled to view.

The issue of the right of parents to determine in the event of the death of a guardian or custodian for their minor children is being considered. Based on the analysis, the author comes to the conclusion that the specified will of the parent is a unilateral family legal act and can be qualified as a testamentary disposition. Proposals are made to improve the current legislation and the practice of its application. nine0016

Key words: testamentary disposition; guardianship, trusteeship


According to the well-known Roman jurist Gaius, in the ancient law of the Roman state, a testament was made in a national assembly of curiae, which was convened for this twice a year. The testator verbally expressed his will, i.e. before he appointed himself an heir, and in addition, he could appoint a guardian to his wife and minor children [3, p. 241]. Roman law distinguishes three types of guardianship: testamentary, legal and governmental. The difference between the two boils down to the manner in which the guardian is appointed. nine0003

The Code of Laws of the Russian Empire (vol. X, part 1, article 227) provided that in addition to disposing of property, the testator could also make an order to appoint guardians to minor heirs. It was assumed that the content of the will could be exhausted by the order on the appointment of guardianship.

In the Russian Federation on September 1, 2008, Federal Law No. 48-FZ “On guardianship and guardianship” came into force [5]. In accordance with paragraph 2 of Art. 13 of this Law "the only parent of a minor child has the right to appoint a guardian or custodian for the child in the event of his death." In other words, this law, for the first time in the practice of our legislation, gave parents the right to determine a guardian (custodian) for their child in the event of their death. nine0003

In recent years, plane crashes, train crashes, explosions, fires in factories, mines, gas and oil pipelines, car accidents, floods, devastating earthquakes and other natural disasters accompanied by mass death of people have become much more frequent on the planet. All this makes people think about drawing up various kinds of legal documents, not only concerning property, property rights, but also determining the fate of their loved ones, and especially children. Most often in such cases, citizens turn to a notary with a request to certify a will. It is not uncommon for parents or one of them to ask a notary to certify a will in which they would like to appoint a guardian or custodian for their child in the event of their death. nine0003

This raises the following questions:

– Can a parent's decision to appoint a guardian or custodian in the event of his death be called a will?

– Can both parents certify such a document at the notary at the same time?

– In this testamentary disposition, is the parent entitled to determine the property at the expense of which the guardian (custodian) can pay expenses for the maintenance of the ward child?

Under the will it is customary to understand the order of a citizen in the event of death about his property, made in the prescribed form [6, p. nine2]. Article 1118 of the Civil Code of the Russian Federation establishes that a citizen can dispose of property in the event of death only by making a will. In order for this disposition of a citizen in case of death to be recognized as a will, it must meet a number of criteria:

  1. A will is a unilateral transaction.
  2. A will is made in case of death of a citizen.
  3. A will is an order of a citizen about his property.
  4. A will is a transaction directly related to the personality of the testator, and therefore it can only be made by a citizen who at the time of its making has full legal capacity. nine0041
  5. The will must be expressed in writing and notarized (clause 1, article 1124 of the Civil Code of the Russian Federation). Failure to comply with this norm entails absolute invalidity, nullity of the will [4, p. 651].

It should be noted that the citizen specified in the testamentary disposition has the right, but not the obligation, to become the guardian (custodian) of the child. As a general rule (Article 35 of the Civil Code of the Russian Federation), a guardian or trustee is appointed by the guardianship and guardianship authority at the place of residence of the person in need of guardianship or guardianship. The establishment of guardianship or guardianship is allowed under an agreement on the implementation of guardianship or guardianship (clause 6, article 145 of the RF IC, clause 1, article 14 of the Guardianship Law). Thus, the testamentary appointment of a guardian (custodian) is not unconditionally obligatory for the body of guardianship and guardianship. At the same time, the guardianship and guardianship authorities, without sufficient reason, cannot remove from guardianship (guardianship) a person appointed by testamentary disposition. nine0003

Would it be correct to call a will a document in which a parent, exercising the right granted to him by law, appoints a guardian or guardian to the child in the event of his death? It seems to us that it will not be a violation of the law if the notary calls such an order a will. In accordance with paragraph 1 of Art. 1118 of the Civil Code, it is possible to dispose of property in the event of death only by drawing up a will. An analysis of this article only shows that any disposition of a citizen's property in the event of death should be called nothing more than a will. It does not follow from this that the disposal of a citizen with other rights in the event of his death cannot be called a will. Federal Law No. 48-FZ granted the parent the right to determine the guardian or guardian of the child in the event of his death, but such an order must be made in an application submitted to the guardianship and guardianship authority at the place of residence of the child. nine0003

It seems to us that the parent's order to appoint a guardian (trustee) to the child in the event of his death does not meet all the signs of a will, primarily because it cannot be considered a unilateral transaction. By its legal nature, such an order of the parent will be a unilateral family legal act [1, p. 58–75]. This action, like a will, is made in case of death, must be expressed in writing and, by virtue of the law, can be notarized. No less important is the fact that such an order is also directly related to the personality of a particular parent. The right to determine the guardian (custodian) of the child is extremely important for the parent. This circumstance cannot be underestimated. When a child temporarily leaves the Russian Federation, the legislator imperatively establishes the need for notarization of the parents' consent to the child's departure. A more serious situation arises when it is necessary to secure, at a high professional level, the parent's order to determine the guardian (custodian) of the child in the event of his death. nine0003

It should be noted that recently such definitions of a will have begun to appear in the legal literature, in which a will is understood as “an act of an individual to dispose of his material and intangible benefits in the event of death” [2, p. 666].

In our opinion, it is advisable to make changes to part 3 of the Civil Code of the Russian Federation. In particular, paragraphs 1 and 5 of Art. 1118 of the Civil Code shall be stated as follows:

“1. It is possible to dispose of property and personal non-property rights (benefits) in case of death only by making a will. nine0003

2. A will is a unilateral transaction that creates rights and obligations after the opening of an inheritance.

A will may be a unilateral legal act that creates rights and obligations after the death of the person who made such a legal act. ”

The federal law “On guardianship and guardianship” did not regulate many issues related to the parent's order to appoint a guardian (custodian) for their child. For example, should a parent be subject to the same requirements as a testator? Can such an order be given by a parent with limited legal capacity or by a parent with limited legal capacity (for example, a 17-year-old unmarried mother of a child)? If the legislator recognizes as a testament the above parental order to determine the guardian (curator) for the child, then there will be no need for legal regulation of these issues in the Federal Law of April 24, 2008, since they are regulated in sufficient detail by Part 3 of the Civil Code of the Russian Federation. nine0003

At the same time, according to the legislator, in addition to the notary, the head of the guardianship and guardianship authority, the signature of the parent on the application can be certified by a fairly wide range of organizations (for example, organizations at the place of residence, work, study, housing construction or other specialized consumer cooperative and etc. ). Sometimes the future guardians (custodians) of the child, along with educational, human rights functions, will also have to carry out the functions of managing a very solid inheritance of their future ward, and therefore such persons should be ready to give an appropriate qualified explanation. We believe that in such cases, these organizations do not bear any responsibility and cannot adequately solve the problems that arise. Therefore, in our opinion, only a notary has the right to certify such a testamentary disposition, since a notary is a highly qualified specialist with extensive experience, who, performing all the necessary procedures for formalizing this notarial act, is at the same time a guarantor of their legality and the correctness of their implementation. nine0003

Can both parents at the same time appoint a guardian or custodian for the child in the event of their death? Since the testamentary disposition of a parent is a unilateral legal (family legal) act, it is not allowed to make such a disposition by two parents. In our opinion, paragraph 2 of Art. 13 of the Federal Law “On guardianship and guardianship” is not formulated quite correctly, since, in accordance with this rule, only a “single” parent can make such an order. Parents can leave this life at different times or at the same time. We believe that in both cases, the notary can certify the order of both parents, but these must be different documents and with different wording. In the first case, each of the parents in his document indicates: “... if on the day of my death the second parent is not alive, then in this case I ask you to appoint the guardian of my child ... a citizen ...” In the second case, you should indicate: “in the event of our simultaneous death ….” By the way, guardianship and guardianship authorities are already accepting such applications. In addition, we believe that a document that sets out the parent's order in the event of his death to determine the guardian (custodian) of his child should be called a will or testamentary order, and not a statement on which a notary certifies the authenticity of the parent's signature. For this reason, in our opinion, the wording of paragraph 2 of Art. 13 of the Federal Law "On guardianship and guardianship" needs to be adjusted. nine0003

In addition, situations may arise in practice when a single parent who, in the last years of his life, did not live with the child, did not raise him, did not manage his property, can apply with this kind of application. In this regard, the legislative experience of France deserves attention. Article 397 of the French Civil Code establishes: “The personal right to elect a guardian in the event of his death is recognized for the last of the living parents, provided that until his death he continued to exercise custody or lawful management of the property of a minor” [7, p. 209–210].

In our opinion, it is advisable to supplement part 3 of the Civil Code of the Russian Federation with a new article 1140.1 "Testamental appointment of a guardian or custodian" as amended by draft law No. 184681-4. This draft law was submitted by deputies P. Krasheninnikov and E. Lakhova to the State Duma of the Russian Federation when the Federal Law of April 24, 2008 was adopted (including on issues related to determining the property at the expense of which the guardian (custodian) has the right to pay maintenance costs ward). nine0003

We believe that in a testamentary disposition, parents could exercise other rights not related to the disposal of property, for example, the right to voluntarily recognize themselves as the father of a child born out of wedlock, if at one time the citizen could not do this for some reason (for example, not wanted to complicate relations in his family).

References

  1. Danilin V.I., Reutov S.I. Legal facts in Soviet family law. Sverdlovsk: Publishing House Ural. university, 1989. 155 p.
  2. Civil law : textbook. allowance / under total. ed. A.P. Sergeeva, Yu.K. Tolstoy; 4th ed. revised and additional M.: TK "Velby". Prospekt Publishing House, 2004. 608 p.
  3. Roman private law: textbook / ed. I.B. Serebrovsky and I.S. Peretersky. M.: Yurid. Publishing House of the USSR Ministry of Justice, 1948. 583 p.
  4. Russian civil law : textbook: in 2 volumes / otv. ed. E.A. Sukhanov. M.: Statut, 2010. Vol. 1. 958 p.
    5. nine0040 Russian newspaper. 2008. April 30.
  5. Serebrovsky V.I . Essays on Soviet inheritance law. M.: Publishing House of the Academy of Sciences of the USSR, 1953. 240 p.
  6. French civil code: textbook-pract. comment. M.: Prospekt, 2008. 752 p.

Can I appoint a guardian for my son, and will the apartment?

Good evening. Tell me, can I appoint a guardian for my son (3 years old) during my lifetime .. if you never know what happens to me? And yet, my apartment is privatized, do I need to make a will for my son (there are no more relatives)? nine0003

, elena gromova, Saint-Petersburg

will for an apartment

Kirill Bukhtoyarov

Lawyer, Saint-Petersburg

Expert

when applying to the guardianship authorities, you must indicate the reason for such a decision in the application.

Valeria Pletneva

Lawyer

The sole parent of a minor child has the right to determine in the definition. cases of a guardian or custodian of a child. A parent can make an appropriate order in an application submitted to the guardianship and guardianship authority at the place of residence of the child. The parent's application for the appointment of a guardian or custodian in the event of his death to the child must be signed by the parent with the indication of the date of preparation of this application. nine0140

Parents may submit a joint application to the Custody and Custody Authority for the appointment of a guardian or custodian for their child for the period when, for valid reasons, they will not be able to perform their parental duties, indicating a specific person. The act of the body of guardianship and guardianship on the appointment of a guardian or custodian at the request of the parents must indicate the period of validity of the guardian or custodian.

it should be taken into account that the guardian/custodian must comply with a number of conditions. nine0003

they cannot be: deprived of parental rights, having or having had a criminal record, being or being subjected to criminal prosecution (with the exception of persons whose criminal prosecution was terminated on rehabilitating grounds) for crimes against life and health, freedom, honor and dignity of a person ( with the exception of illegal placement in a psychiatric hospital, slander and insults), sexual integrity and sexual freedom of the individual, against the family and minors, public health and public morality, as well as against public safety; persons who have an unexpunged or outstanding conviction for grave or especially grave crimes, etc. nine0003

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