Who Will the Court Appoint as Guardian for Your Children?
If you die without a will that appoints a guardian for your children, it will be left up to the Court to decide. The Court will consider what is in the child’s best interest. It may not be who you would want appointed as your child’s guardian. When you are choosing a guardian, make sure you choose well. Here are some items to consider when you are choosing a guardian: Religious preference: If parents have specific wishes about their child’s spiritual practices, this is a conversation to be had with the guardians they appoint. Physical ability — now and later: This is especially an important case with children who have special needs who may require more continuing care as they get older. Emotional stability: Your 22-year-old artist brother who sleeps in a lot may not be ready for this. Location: If your sister in California is going to get the kids but you live in New York, is she supposed to come live in your house or would the kids move to her home in California? Does she live in a good school district? If your chosen guardian’s location would mean uprooting the children, don’t leave these questions to surviving family members to figure out on their own. If your appointed guardian lives outside the United States or even a time zone away, it’s especially critical to consult a lawyer, as different states have different laws about moving minors out of state. A deep bench: If the person is unable to care for your child, who is the back-up choice? If the person you chose to care for your child is unable or unwilling to become a guardian and you haven’t named an alternate, the court will select a guardian. Financial responsibility: There are two types of guardians of a child: the legal guardian — who has physical custody of the child, kisses boo-boos and signs permission slips — and a fiduciary guardian, who manages the deceased parents’ finances set aside for the child. The fiduciary role may be played by a conservator (sometimes used by courts in lieu of a guardian), personal representative, attorney-in-fact or custodian if there is not a trust and a trustee. It’s not necessary to divide the two roles, but it’s an option if you have concerns about your legal guardian’s money management skills or your fiduciary’s care-taking skills, or if you want to ensure a larger team of people is responsible for your child’s well-being after your death. If you do name a fiduciary guardian, make sure it’s someone familiar with your child’s needs and lifestyle so that there won’t be tensions over whether horseback-riding lessons are a luxury or an important source of comfort and consistency for a bereaved child. Teamwork: Will your physical guardian and fiduciary guardian work well together? If you do divide the roles between financial custody and guardianship, it’s important to consider whether the two parties will get along and work together for the sake of your child. Ask permission before you appoint someone to these important roles. As always, open lines of communication are critical to finding the best […]
Read moreAre You a Blended Family? What Happens to Your Property If You Die Without a Will?
If you have a blended family, your property may be distributed in ways that you do not intend. To show what happens, let’s assume Mommy Shark and Daddy Shark have one baby shark together. Daddy Shark had one baby shark from a previous marriage. When Daddy dies, he leaves behind the following assets: A home that Mommy and Daddy bought together after they got married and still live in it. A flower shop with commercial property acquired during their marriage. A lake house which Daddy owned before he met mommy. A bank account worth $200,000 to which both contributed for their retirement. The home in which they lived is community property. But because daddy has a child from another marriage, Daddy’s half share of the house will pass directly and equally to his 2 children. Mommy will retain the right to live in the home during her lifetime and retain her half ownership in the home. The flower shop and commercial property are classified as community property. Daddy’s half share of the business and commercial property will pass directly and equally to his two children. Mommy will keep her half ownership in the business and commercial property. Mommy will now run the business with her child and stepchild. Did she want partners in this business? Since Daddy owned the lake house before he met mommy, it is classified as separate property. All of the lake house will go to the children but Mommy will have a one-third life interest in the property. he may not have unlimited access to the lake house as she once did. What will happen to the bank account they saved for their retirement? It will be split in half, Mommy will retain $100,000 but the rest will be split equally between Daddy’s two children. Will Mommy have enough to retire now? If you find yourself in a similar situation or to avoid issues like these, contact us.
Read moreDying without a Will
Who Inherits When A Married Person Dies Without a Will in Texas? Many Texans think that the surviving spouse will inherit all of a deceased spouse’s estate if there is no will. This is NOT always the fact. Here is how the property will be divided. Community Property Texas has a a presumption that all property acquired during a marriage is community property. Under Texas laws, when a spouse dies and all of the deceased spouse’s children are also the surviving spouse’s children: The surviving spouse will inherit all of the deceased spouse’s community property. This will happen only IF ALL children are also the children of the deceased spouse. Under Texas laws, when a spouse dies and the deceased spouse has children that are not the children of the surviving spouse: The deceased spouse’s one-half interest in the community estate will pass to that spouse’s children and the surviving spouse will keep his or her one-half interest in the community property. Homestead Real Property The surviving spouse will have a life estate in the homestead. This means that the surviving spouse will have the right to use the property until his or her death. If the deceased spouse does not have any children, then the surviving spouse will inherit all of your community property. Separate Property Separate property is property that you owned before marriage, or acquired, even during a marriage, by gift or inheritance. The intestate distribution formula is different for separate property: If you are married and have children, the personal property and real property are handled differently. Personal Property The surviving spouse and children will receive one third of your separate personal property. Real Property The surviving spouse will only receive a life estate (the right to use the property until his or her death) in one-third of your separate real property. The surviving children inherit the remaining interest outright. If you are married but don’t have children, your separate personal property will be distributed to your surviving spouse . However, if you have surviving parents and siblings, your surviving spouse will receive only one-half of the separate real property. The other half will pass to your parents, siblings or descendants of siblings according to a statutory formula. If you want the freedom to decide how and to whom your property will be distributed when you die, you need a will. For assistance creating a will or updating one that you may already have, please contact Cynthia Fronterhouse of Nimmons & Fronterhouse.
Read moreElder Law: Documents Every Adult Needs, Probate and More
The following transcript was excerpted from a June 22, 2020 virtual presentation on elder law, wills and probate in Texas by attorney Cynthia Fronterhouse. The event was organized and sponsored by CarePartners, whose vision is to be the leader in caregiving resources in Texas. You can click the image above or watch the recorded presentation on YouTube. My name is Cynthia Fronterhouse and I am an attorney in Houston. I actually practice law with my father. He is semi-retired, but he has over 50 years of experience. He has always focused his practice on construction litigation, representing small companies, so when I joined him, so he could go enjoy his life, I really enjoyed meeting with the clients and their families, preparing for the inevitable as well as when they lost a loved one. I grew up in the Spring Branch/Memorial area. I did go away to college to Smith College in Massachusetts and then I came back to Texas and went to the University of Texas Law School. I am married, and I have one daughter, age nine years old. Really helping families before they lose someone and then when they lose a loved one is really my passion and walking them through that process. It’s so difficult when you’re trying to process and grieve, and then having to deal with a lot of the probate aspects is tough. So that’s really what I’m going to focus on. Most people know what a will is and why it’s important, but then what happens when you do lose a loved one? A will is a document that determines where your assets are going to go when you die. It doesn’t take effect until you’ve passed away, so once you pass away is when your will goes into effect. And one of the big cases that we had when I first started with my dad was one where one of his clients lost a brother, who didn’t have a will. When he died, he had two minor children. Watching the family go through that grieving process, and then having to see how difficult it was because the man didn’t have a will was what really inspired me to help people and educate people. That’s so important. You can use a will to determine where your assets are going to go and to whom you want them to go. Also in your will, you can appoint a guardian to your children. Also in your will you can appoint an executor. The executor is only responsible for determining and following your wishes that are outlined in your will. So what happens when you lose someone if they have what’s called probate? Probate is the process of authenticating the will. You file an application to probate a will with the court. You file the original will with the court and normally do it in the county where the person resided. You have to do that within four years. Then you file with the County Clerk. You have to wait 10 days because the will is posted at the County Courthouse and then, after 10 […]
Read moreWhat You Need to Know about Wills and Probate in Texas
Attorney Cynthia Fronterhouse shares the key things you need to know about wills and probate in Texas. There are four estate planning documents that every adult in Texas needs to know. Those include: A last will and testament appoints a guardian and establishes a trust. A durable power of attorney appoints an agent to manage your finances. A medical power of attorney appoints an agent to make healthcare decisions on your behalf, if you become unable to do so on your own. A directive to physicians instructs physicians not to use artificial methods to prolong your life. If you have a will and die in Texas, probate is a simple process to distribute your assets. Most Texas wills direct the named executor to pursue independent administration. Independent administration in Texas allows executors and administrators to serve largely independent of court supervision. This means that the executor does not have to post a bond and does not have to ask court permission before taking many steps to settle the estate. Is your will valid? To make a valid will in Texas, you must have a legal capacity testamentary capacity, testamentary intent and certain formalities must be followed. If a will does not meet all the requirements set forth by the statutes, your will unfortunately will be declared invalid, meaning that your estate could be distributed according to statutory formula, rather than the way you would have preferred. What should you do if you are the surviving spouse? In order to ensure that all estate property is fully and efficiently distributed, it is recommended that the surviving spouse probate the will when first spouse dies. Community property residences are generally owned as tenants-in-common. Thus, if the surviving spouse later attempts to sell the home, some form of probate or estate administration must be initiated to transfer the full title on the house to the surviving spouse’s name. If you die without a will, Texas law lays out how the state will be distributed. The disadvantages of dying without a will are many. You don’t determine how your property is distributed. The court will decide who will be the guardian of your children. Your pets may not get the care that they deserve or that you wish for them. It’s a more expensive proceeding if there is no will. You may not get the funeral that you wanted. Remember: The law provides four years to probate a will. After four years, it is costly and timely to do so. Handling of Your Executed Estate Documents Copies: Except for your will, it is always a good idea to have several copies of these documents and keep them at various locations. This ensures that those persons who are helping you will have easy access to the documents they will need, if your health deteriorates. Please note: If you are making additional copies of these documents, please do not unstable the original. Instead, use a copy to make additional copies. Medical power of attorney: Please give a copy of this document to your physician to be included in your medical records. If you are an outpatient at […]
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