Parents of growing children need wills, perhaps more than any other group. Why? Otherwise, your property probably will not end up where you intend, and the Court will have to guess who should raise your children in your absence. A will is the ONLY way to assure that your children are provided for in the way YOU want.
If you die without a will in North Carolina, the “Intestate Succession Act” controls the estate, specifying who takes what property, and how. You may be surprised to find that the Intestate Succession Act is not always logical, and probably would not do with your property as you would.
If you are married with one minor child, you probably expect that if you died without a will, your property would go to your spouse, who would use it to take care of themselves and the child. It doesn’t work that way. Your estate would be divided between your spouse and your child, so that your spouse would not own everything outright. Then the Clerk of Court (not the surviving parent) oversees management of the child’s share of the property. If the surviving parent wishes to sell property inherited by spouse and child, there is a cumbersome and expensive procedure for the Clerk of Court to approve the sale. The Clerk also controls how the child’s share of sale proceeds will be invested or spent. No one would wish that on their family.
In some families, a spouse/parent can fully trust that if they died, their spouse would see that the children are properly cared for – financially, emotionally and otherwise. In those cases, life would be much simpler for the family if there is a will leaving the entire estate to the surviving parent.
If you wish to leave property to minor children (e.g., if you are a single parent), you need a trustee to take legal title to the property and manage it for the children. Having a trustee avoids having the Clerk of Court control management of the funds. If you are a single parent because of separation, depending on the circumstances, you may choose the other parent or a third person (e.g., grandparent) to serve as trustee. You cannot make this choice without a will.
A major concern for all parents is deciding who would raise their children in their absence. If the parents reside together, there should be a substitute guardian named in the will in case both parents die in a common tragedy. If the parents do not reside together, the will should designate a preference (whether it is the other parent or someone else) for guardian. While a court is not bound to appoint the guardian named in a will, that preference usually carries a great deal of weight.
Why do people put off doing wills? Some don’t want to think about it. However, once it is done, unless the family or financial situation changes, it is out of the way. Some think only older people need wills. As this article explains, parents of growing children may need wills more than anyone. Some think it is expensive. While a few people need extensive work with tax expertise, many clients’ needs can be met with modest cost. Many attorneys will discuss fees with you without obligation.
A will is a necessity and a sound investment for those who want control in providing for loved ones— especially children. A will gives its maker peace of mind, and saves expense and difficulties for the family later on.
Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough, NC. She can be reached at 919-732-7300 or firstname.lastname@example.org.
This article was last updated in January 2020.