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Law Offices of Ronald W. Rutz
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May 8, 2004: MotherÕs Day Thoughts

Q: I have my own question this week. On this day before MotherÕs Day, what is the gift that far too many mothers are withholding from their children?

A: On MotherÕs Day we try to show our appreciation for all the love, support, and sacrifice that mothers voluntarily give throughout the year, but far too many mothers (and fathers too) neglect to make available for the benefit of their children one of the initial and fundamental instruments to protect those children Š a Will.

Since statistics vary so much depending on the source, I wonÕt quote a specific figure, but all indications are that well over half of the people under 40 with children do not have Wills. Oh, many reasons are given, including: "I have so little that it doesnÕt matter;" "I have made arrangements so the kids will be fine;" "It costs too much right now, so I will do it later;" or "The likelihood of both of us not being around is so small that IÕll worry about it later."

If each parent is deceased or the surviving parentÕs rights have been terminated through a divorce (or the surviving parent cannot be found, which occurs with alarming regularity these days), then a judge will decide who will raise the children. By having a Will, the deceased parent can appoint a guardian to take over. (Informal arrangements made by the deceased do not have to be honored.) It has been my experience that the selection of a guardian is the most difficult decision a mom and dad face, with many parents not following through and completing Wills because the choice is so difficult. But if parents do not make the determination, then they are saying it is OK for a judge to decide.

Even if a person has very little of the worldly accumulations to leave the children, then what is at hand at death should be conserved and managed as cheaply and efficiently as possible. A Trust for the children in a Will does just that. Otherwise, a conservatorship through the court would normally be required to hold the inheritance of a minor with all the accompanying expenses and legal complications that go with such an arrangement. A judge would also decide who would manage the minor childrenÕs assets.

If a parent wishes to be in the "legal loop," or if he or she wishes to provide trust protection beyond minority (say, until the children are through college or in a recent case, until a son was 92), a Trust Will gives a person that opportunity.

Remember, the trustee is the beneficiaryÕs "money person" while the guardian becomes the surrogate parent. One person can do both jobs or a different person can be selected for each position since different talents are needed for each job. And remember that both parentsÕ Wills do not necessarily need to be the same. Thus, whoever passes away second will have his or her designees appointed.

Two kinds of Wills probably would work, if the net worth of the parent (or the couple) is under $1,500,000. Most Standard Wills have a "safety net trust" so that if assets are left to a minor, the trust will be in place to avoid a court established conservatorship. The cost should be less than $200 for each Will.

If property is to be managed beyond minority, or the Trust remains intact until the youngest child reaches a designated age, then a Testamentary Trust Will is needed (a formal Will and a formal trust combined into one document). The cost for each Trust Will should be less than $300.

A person can try to write his or her own Will and it probably will be valid, but will the document work? With a trust involved, the chances of messing up increases by "doing it yourself" and often the tangential issues go unnoticed, such as changing beneficiary designations so the proceeds go into the trust. If the children are named as beneficiaries, that wonÕt happen.

So happy MotherÕs Day and please plan to see your attorney to do a Will. Like so much that moms do, the children wonÕt understand, preferring that the money be used on a video game or a bicycle. But as with so many things in life, someday they may understand and silently thank you.

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