Estate planning: if you have children but no will

Have you ever procrastinated on a project at home or at work because you were waiting until you had just the right tools, materials, plans or information?  If you haven’t, you will not need to read this blog, but if you have, Welcome to The Club!

  • The majority of adults in America do not have a will.
  • Cost is not the most common barrier to having a will drafted and executed.
  • People get stuck in the process when they need to make an important choice and they are not sure what to choose.
  • People get overwhelmed because they try to come up with a will that will be perfect for the rest of their lives.

Estate planning is a process of identifying and addressing the most important issues in a sensible way.

Most people will need to update their wills and powers of attorney several times as things change in their families.

  • Give yourself permission to have a will and powers of attorney that are a good fit for now even if they may not always be the perfect fit for you.
    You can make changes at any time so long as you still have the mental capacity.
  • Take the first “mini-step” in the right direction—make a list of people you would trust to help with your estate or your children.
    Some people are capable of dealing with daily issues, and some are capable of dealing with financial issues.  Make two lists if that helps.
  • Set a deadline for making an appointment with an attorney or even an online service.
    By scheduling an appointment with an attorney you will increase the likelihood that you will follow through and end up with an executed will and powers of attorney.

An attorney will guide the process by asking gathering information and posing some “what if?” scenarios.

You will find that your attorney can help you get through the spots where you got stuck by asking you questions or even telling you stories that will illustrate what works and what does not.

If you are married and have children, one of your top concerns will be naming the right person(s) to raise your children if both of you die in an accident.

In Illinois, if you do not name a guardian, a judge will do it for you when guardianship proceedings are initiated by your children’s nearest relatives.  You can designate a standby or short-term guardian using forms provided by Illinois statute, but the actual appointment occurs when a judge decides that it is in the best interests of the child that a particular person or persons be appointed.

Here are some sample forms that are provided in the Illinois Probate Act.  An attorney can draft more elaborate forms that fit your family better.

Who is qualified to serve as guardian in Illinois?

One person may be appointed guardian of the person (making decisions about residence, education, and health care) and another person appointed guardian of the estate (managing the child’s money or other resources).

The person must be capable of providing an active and suitable program of guardianship for the minor and:

(1) be at least 18 years old;

(2) be a resident of the United States;

(3) not be of unsound mind;

(4) not be an adjudged person with a disability as defined in the Illinois Probate Act; and

(5) not be a convicted felon, unless the court finds appointment of the person convicted of a felony to be in the minor’s best interests, and as part of the best interest determination, the court has considered the nature of the offense, the date of offense, and the evidence of the proposed guardian’s rehabilitation. No person shall be appointed who has been convicted of a felony involving harm or threat to a child, including a felony sexual offense.

755 ILCS 5/11-1

What will happen if you do not have a will or designation of guardian for your children?

If there is only one obvious choice among your relatives to serve as guardian for your children, everything will turn out fine, but in most families, certain friends might be better suited for the job of raising your children and managing their assets.  Most parents labor painstakingly over choices of daycare, extracurricular activities, and schools.  It would be a tragedy if the choice of who will raise the children is left to fate.

If you already have a will, this blog outlines ten situations where updating it may be necessary.