New parents arriving home with a baby have plenty of to-dos on their list: Feedings, diaper changes and maybe, if they are lucky, a little sleep in between.
Yet many new parents forget another task that can be critical to the life of their baby – having their legal affairs in order in case something unexpected were to happen, leaving the child without parents.
"As a new parent, he or she needs to ensure that all the child's needs are taken care of, especially if the new parent is suddenly not around due to a tragedy," said Elizabeth Lindsay-Ochoa, advanced markets consultant for AXA Equitable. "A will, especially the guardianship designation, can give a new parent peace of mind that their child will be cared for in the way that he or she wishes, not what a court determines."
A will is a single document, which typically outlines the disposition of property owned by the decedent and is a part of an estate plan, Lindsay-Ochoa explained. "An estate plan coordinates many more aspects of what should take place during life and at death to ensure the wishes of decedent are met. This may include how to continue a business, (who) should care for a disabled child (physical and financial) or ensuring that children from a prior spouse are not disinherited. In a few words, an estate plan is a how you can protect your family, ensure the best method is used to distribute your assets, and leave a legacy."
Perhaps the toughest part of the process is choosing a guardian for your child, said Liza Hanks, an attorney in Campbell, Calif., and author of "The Busy Family's Guide To Estate Planning" (Nolo 2007).
"Focus on the next three to five years," Hanks said. "Don't try to solve every problem at once. Focus on whom your kids really love. Understand that there are always trade offs (no one can really replace you), but try and identify your core values and issues, so you can make the right ones."
Lindsay-Ochoa suggests the following key items that parents should consider and discuss:
• Tell the guardian about their wishes for their child's future and put those wishes in writing so that the guardian may refer to them
• Be objective when determining if the guardian should control both the physical as well as the financial well being of this child (sometimes these are two different individuals)
• Consider a trust fund, which would be available after the child matures so the child can have some control over his or her own future, but not so much that he or she loses incentive to be an active member of a community or the workforce.
The amount of your assets should not keep you from preparing a will, said Roberts, who also is the co-vice-chair of the Estate and Gift Tax Committee of the Tax Section of the American Bar Association.
"In many cases, new parents may have small estates and may think, 'We don't have anything,'" Roberts said. "Based on that belief, they often avoid the process of making a will. Or the expense of an estate plan may be daunting. But, those small estates are the most vulnerable to significant expenses and are least able to bear them. And further, things always change. A new job, a bonus, a new house and even an inheritance from a relative, and suddenly there is something to deal with. Yet because of the initial 'no action' decision, nothing is in place when it is needed."
If cost is an issue, Roberts said, parents should consider calling a local bar association for a referral, contacting legal service organizations that provide assistance to people with lesser means or borrowing the money to get the task completed.
"Do it yourself equals disaster," Roberts added. "When budgets are tight, parents often turn to self-help books and websites, or programs for their home computer, to generate legal documents. Some self-help books, programs and websites can be very helpful, but in almost all cases, very careful reading and meticulous attention to detail, following every instruction to the letter, is required to make the process work, assuming the book, program or website gives appropriate information to begin with. Unfortunately, without legal training, many people simply do not understand how to work that process, and homemade documents often result in unclear or incomplete plans."
While planning for the worst can be an emotional experience, Hanks finds it also can be very satisfying.
"Emotionally, most people I work with actually find that the process makes them feel good," Hanks said. "You can't control untimely fate, but it feels really gratifying to know that you've done what you can to make it easier for those you love the most, in case you can't be there for them. It's a bit like that earthquake kit - you hope it isn't necessary, but if it is, you'll be so glad you've done the preparation."