I live in Louisiana, and after doing a little research on Google, I found out that it's legal to hand-write a will and you don't even need witnesses or a notary.

First, do my wife and I need separate wills?

Second, I'm looking for help to list out all of the things that I need to cover. I'll also do some more googling for ideas, but also thought I would ask here.

My situation will not be very complicated... I have two kids that would go to someone if my wife and I both died. We have already talked to the people who would get our kids, we just need it in writing. I have a house with no equity and the only real assets would be the life insurance money. All of my life insurance money after expenses and debts are paid will go for the kids. Do I need to spell out exactly how I want the money to be used for the kids (some for their new caretaker to cover expenses incurred by the kids, college, mutual funds that can't be cashed in until a certain age?)

Well it's starting to seem complicated the more I think about it...

Hmm, let's see....


Let's say that the hypothetical bus that hit your wife and you didn't kill you but instead incapacitated you. What happens with the kids then? What if those friends or relatives who are so generously going to raise your kids are hit by the same bus?

What if, after you are gone, they decide that taking themselves and the kids on a nice long luxury cruise is better for their long term well being than saving the money for silly old college?

Anyway, you get the idea I hope. A lawyer would be a fantastic investment for you right now. They don't cost that much are and well worth it. You owe it to your kids!

Hire a lawyer to cover all your bases. You have kids, that is the best way to make sure your assets/insurance proceeds, etc. goes for their benefit. It shouldn't cost you much.

Ok then I have another question... if I were to go to a lawyer, what do I need to consider before I go? Do I need to map out exactly how I would want the money to be used? I would need to put a certain amount aside for each kids college (529 or just plain mutual funds?) and I don't want them to be able to access all of the money when they are 18. If I had a big chunk of money at 18, or 21, or maybe even 25 I would have blown through it.

Also, if someone takes the responsibility of raising your kids when you die should you provide them with money also to cover the added expenses they incur? What would be a fair monthly amount?

Anything else I'm not thinking of?

You don't need to be extremely specific on how the money should be spent and invested unless you really want to. I'd advise against it, since you cannot foresee the future, and future events may change how you would want things done. IMO it's better to give discretion to someone you trust to make those decisions.

Most wills I prepare for people with young children put all of the assets in a trust and gives the trustee discretion to make payments for the children's health, education, support and maintenance "HESM" (with multiple successor trustees named to insure against the trustee being dead, unable or unwilling to serve). The trustee has discretion in making the payments, but "HESM" is a term of art, and the trustee can be held accountable for going astray.

Generally, the trust will continue until the youngest child reaches a designated age at which the assets are divided among the children. The most popular age for this is 25, but some do 30 or 35. Very few do younger. You can also have the trust split upon each child reaching the designated age, with that child taking his/her share and ceasing to be a beneficiary of the trust.

The wills also name several successor guardians for the children.

Trustees and guardians are by law entitled to "reasonable compensation" (at least in Illinois, I assume everywhere else). You don't need specify the amount.

So, if the only assets I will have upon my death would be my life insurance proceeds and 401k, could I form a trust now? Or do I have to have assets already to form the trust?

The trust would be contained within the will, and only actually established and funded if you (and your spouse) die with children under the designated age. You would also need to name the trust as secondary beneficiary (presuming your spouse is the primary beneficiary) of your life insurance and 401(k) accounts.

@Shaun, bpqui is a lawyer who does this kind of thing so you should listen to him. He knows what he is talking about.

I can tell you how things worked for us from the client's side: The lawyer met with us initially for free. He outlined the process and, after listening to the general idea of what we were looking for, told us what his fee would be. He told us what kind of information he needed from us and told us what kinds of things to think about for the next meeting (what ifs). Then we met again in a couple of weeks by conference call to talk about specifics and he asked us more questions. Then he prepared the documents over the next few weeks and sent them to us for review. We had some questions and changes. Then when everything was agreeable to us we went to his office and signed everything. His office then handled all the retitling of assets and insurance as well as filing some forms with the state. In our case we were setting up a living trust, 2 wills, various powers of attorney, and having a separate trust we already had for a specific purpose reviewed. The total cost for everything including the hours we would have spent retitling over a dozen different investment accounts and insurance policies was about $1000.

We have him review things every 2-4 years and have made some changes at times. That typically runs about $250-$500 but could be zero. We have made changes and that required extra work.

I have worked with about 5 different attorneys on a professional and personal basis. My suggestion is to meet with at least 3 and decide which to hire based partly on fees but also on which one you like best. Having a good relationship is very helpful. You are not hiring a friend of course but it is always nice to work with someone you like and feel comfortable with. When I've worked with attorneys professionally I was much more interested in someone who was aggressive like a pit bull and I'd probably look for the same if I ever needed a criminal lawyer. But for a simple estate plan, I think finding someone you and your wife are comfortable with is very important.

If bpqui disagrees with any of this then I'm wrong and he is right!

You got it down pretty well.

I've been reading a little and I've read that my 401k and life insurance money will not be considered part of my estate if they are assigned to a beneficiary.

So if I died tomorrow and my wife received all of that money, would she be required to use any of it to pay off debt that is only in my name? From what I understand, my estate is responsible for paying my debt, but my life insurance and 401k would not be part of my estate.

I'm not exactly sure what you mean here? What does the trust would be contained in the will? Do you actually fill out paperwork now that creates the trust that would be funded when I die?

Forgive my ignorance... this is all brand new to me.

Yes. The terms of the will would provide that the trust be established if the necessary prerequisites are met.

If I may say...this is why the preprinted wills or even the books about writing your own are so bad in my opinion. Laws change all the time so a book or form even 5 years old may not be correct any more. And how would you know what language to put in your will to create a testamentary trust like this that complies with current state and federal law?

Well I think I'm going to follow your advise and see an attorney. I've been reading for two straight days and I still can't come up with the steps to do this on my own. I looked at the sample living trust form on uslegalforms.com and it's pretty confusing to me. I've already purchased a will, living will, and power of attorney from them, but I'm just going to put those away and see an attorney.

I think the handwritten will you describe is called a holographic will. Yes, it's legal and binding but there are requirements to be fulfilled first before it can be a valid one. The most important I think is that it is written by the testator in an emergency situation; at the point of death for instance, and it would have to be proven in a court proceeding that 1) you wrote it and 2) you have the intellectual capacity when you are writing it.

That being said, it's better to draft one right now if you have already decided how your estate will be divided. It is also my opinion that the holographic will (if valid) will supersede or supplement the already existing one.