| PUTTING YOUR WISHES IN A
WILL
Now that you have been introduced to the issues you will face in preparing for the future, you are ready to begin the legal process. The best place to begin is by writing a will. Everyone who has a child should write a will naming a guardian. A will must be written by legal rules, so it is important to prepare a will with a lawyer.
WHAT IS A WILL?
A will is a legal document that states what you want to happen to your children and your property after you die. In your will, you can state who you want to be the guardian of your children if you die before they are 18 years old.
The will itself does not make the person you name the legal guardian of your children; only a court can appoint a guardian. However, the will can be used in court as proof of your wishes. (This handbook explains how the guardian named in your will can go to court to get legal guardianship in the section "Filing a Guardianship Petition").
If you are not naming your children's other parent as the guardian in your will
The other parent of your children has the right to try to get custody of them. Because of this, you should try to get the other parent's written agreement to your chosen guardian. If you cannot get the other parent's agreement because the other parent has "abandoned" your children or refuses to agree, you should explain in your will or in a separate document why you are not naming the other parent. [Abandonment usually means the parent has had no contact with the children for more than six months although able to do so.]
You should also give the reasons why you named your proposed guardian. For example, you should state the amount of time the children have spent with the person you have chosen, the closeness of their relationship, and how the person has shown that they are able to care for your children.
If your children's other parent has died, you also should try to get the death certificate because your proposed guardian will need it in the future to file a guardianship petition in court.
INFORMATION YOU NEED TO MAKE A WILL NAMING A GUARDIAN
- The name, address, and telephone number of your proposed guardian and, if possible, an alternate guardian;
- a list of your reasons for selecting the guardian;
- the name, address and telephone number of the other parent or parents of the children;
- a list of your reasons for not selecting each child's other parent as guardian;
- the name, address, and phone number of the person who will make sure your will is followed. This person is called your "executor." (See "Making a Will")
- your children's birth dates.
IS WRITING A WILL ENOUGH?
There are disadvantages to planning for the care of your children by only writing a will. A will is not used until after your death. If you are not naming your children's other parent, he or she has the right to challenge your choice of guardian. This means that when the person goes to court after your death to be appointed as guardian, the other parent can ask the court to be appointed guardian instead. If you think the other parent or someone else may challenge your choice, it is better to go through court as soon as possible so you can tell the judge your wishes in person.
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© 2003 Gay Men's Health Crisis
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