Can I create a will before our baby is born?

Question

We are having a baby and I had a question about creating a will. I am planning on talking to a lawyer before doing so, but just wanted some quick advice. Can I create the will before the baby is born? When I tried to find some will samples online, the forms all asked for the child's name, which we don't have yet. I'd really like to get as much done before the baby is born, for obvious reasons, so is this something I can do, or do I have to have the baby named before I can create the will?

Answer 1

Yes. Typically, a will is drafted so that it applies not only to any current children but also to afterborn children. In a statement of family, in a Will, I would often say that:

"children" as used in this Will including the following persons and any other person subsequently born to me or legally adopted by me.

Then I would draft the guardianship and dispositive provisions using the term "children" without specifying a name.

If children are born, but there might be a paternity issue, it isn't uncommon to state that "my children at the time this Will is executed are . . . . and I intentionally exclude from benefit hereunder or for any fiduciary position with respect to me, any other person claiming to be a child or other descendant of mine as of the time that this Will is executed, but do not intend to exclude subsequent children or children later adopted by me."

Answer 2

I assume that your actual question is about leaving money to this (currently non-existent) child. There are certainly ways this can be done, such as leaving a sum "to be divided between all my children living at the date of my death", or something "to my second [or whatever] child", but none of them are legally foolproof. Your lawyer will be able to advise you how best to give effect to your wishes, but you need to think in advance what those wishes are, particularly in unpleasant and unlikely cases such as the early death of a person named.