When you hear the words “estate planning,” you likely think about who is going to get your stuff when you die. While this is one question that is addressed during the estate planning process, there are other crucial topics that need to be addressed, especially as a single parent with minor children.

Why You Need an Estate Plan

Minor children depend on their parents to survive. If you are not able to care for them, you likely want to ensure that they are cared for in the way you would want. By putting the right estate plan in place, you can make your voice heard with respect to who will be raising your minor children and how any money and property left for your children’s benefit is used.

Care and Custody of Your Children

One reason you should engage in estate planning is to name someone to care for your minor children. Children under the age of majority (eighteen or twenty-one depending on your state law) do not have the legal ability to care for themselves (unless they have been emancipated). If the other legal parent is still alive, that parent may be the one who will receive custody of your children. However, if there is no other legal parent, or if the children’s other legal parent cannot care for them, you need to have a plan in place. If you do not have a plan in place, the judge will look to state law to determine the appropriate guardian. This may or may not be the person you would have chosen.

How You Can Nominate a Guardian at Death in Texas

There are a few different ways to nominate a guardian at your death. First, the nomination can be made in a last will and testament (also known as a will). This allows you to nominate someone to be your children’s guardian at your death, name the person to wind up your affairs (executor or personal representative), and state who will receive your money and property and how.  Although, you can do this in a Will, I do not recommend that you do. 

Similarly, you may use a pour-over will to nominate the guardian at your death, but a pour-over will makes your trust the beneficiary of any money and property going through probate.

Lastly, Texas has a separate document that allows you to name guardians for your minor children. At The Law Office of Antoinette Bone we recommend the separate document because you can change your choice without having to update your entire will or pour-over will.

Naming a Decision Maker in Case of Emergency

While estate planning can be focused on death, it is also important that you have a way to name someone to care for your children in the event you are still alive but unable to care for them. In addition to stepping in when you are unable to make your own decisions (referred to as being incapacitated), this document can be used if you are traveling and need someone to make decisions on your minor children’s behalf. It is important to note that this document is only effective for a short period of time (for example, six months in some states up to a year in Texas). Also, there are some things the named person cannot agree to, such as a minor child’s adoption or marriage.

Rules for Your Children’s Inheritance

Who will be in charge?

Minor children (unless emancipated) cannot handle their own financial affairs—they need an adult. Without an estate plan, if you pass away, the other legal parent may be put in charge of managing whatever is left to your child. If the other legal parent is unable to manage your child’s inheritance, then the court will have to appoint someone. You have the opportunity through your estate plan to name the person you want to control the money and property. Without an estate plan, the judge will have only the state law and the people before them to use in making the determination.

When and how will the children receive their inheritance?

If you do not have an estate plan, your children’s inheritance will be managed for their benefit until they reach the age of majority, at which time it will be given to them outright. Although they will be legal adults, they may not be prepared for a large influx of money and property. Also, you may have certain things that you want the money used for. Using a trust allows you to draft instructions for exactly how the inheritance is to be used. You can create a revocable trust, or you can include these instructions in your will (known as a testamentary trust). The important distinction between these two options is that a will has to be filed with the probate court and the proceedings will be public and overseen by a judge. A properly drafted and funded trust and its management, on the other hand, can be conducted without probate, and no documents need to be made public.

We Are Here to Help Protect You and Your Loved Ones

We are passionate about protecting the next generation and helping parents continue their legacy. The Law Office of Antoinette Bone, PLLC works with families of all shapes and sizes here in Texas to craft a plan that is as unique and modern as you and your family are. Call our office today at (682) 428-3046 to schedule an appointment to discuss your estate planning needs and how we can help protect you and your children.

To comply with the U.S. Treasury regulations, we must inform you that (i) any U.S. federal tax advice contained in this newsletter was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding U.S. federal tax penalties that may be imposed on such person and (ii) each taxpayer should seek advice from their tax advisor based on the taxpayer’s particular circumstances.

Nothing in this message is intended to provide legal advice.  This message is for educational purposes only.