Parents, if you have minor children you should engage in the proper legal planning now to protect your children if you pass while they are under the age of 18 years of age. If you do not make the proper legal plans ahead of time, the Court will decide your children's guardians for you and also control any assets they will inherit, see bottom portion of this page- this is the most cumbersome and expensive hassle you can place on your child, and their care-taker. (Just in case you were wondering, a religious God Parent has no legal "priority" under the law when applying with the Court to be appointed as your child's legal guardian.)
I have been appointed by the Dallas County Probate courts as an attorney ad litem for minor children when their parents have passed away and have also represented surviving family members to become appointed by the Court as legal guardian of minor children when both parents have passed away. I have seen families that didn't plan ahead at all and have seen legal documents that did not do all that they could due to the lack of knowledge, experience, and/ or legal advice that was or was not provided during the planning process. This can happen if you work with an attorney who is unfamiliar with the practical realities of estate planning and probate; and this will happen if you use online "legal" planning websites or "fill-in-theblank" form kits to prepare your Will (without appropriate legal guidance). It sounds harsh but realize that saving money by doing this on your own will cost your minor child more if something does happen to you.
If you die or become totally incapacitated and cannot care for your minor child, a guardianship of the person of that minor child will be necessary if that minor child no longer has a surviving parent to care for them. A minor child is a person under the age of majority (18 years of age).
Custody vs. Guardianship
Legal guardianships are different from what is commonly referred to as "custody" or "conservatorship" of a minor. These issues are typically handled by divorce or family law attorneys and generally deal with "possession" issues.
Guardianship, by law, not only grants rights in regards to possession but also the proper legal authority to possess and take charge of the person. In Texas, guardianship is divided into two categories:
-- guardianship of the person and
-- guardianship of the estate (discussed further below).
Guardian of the Person
The guardian of the person is entitled to take charge of the minor child and has the right to physical possession, the power to consent to medical treatment, and the duty to provide care, supervision,protection, & shelter for the ward.
In general, both parents are the natural guardians of the person of a minor child who is born of their marriage. If one parent passes, the survivor is the natural guardian of the person of the minor child. If no natural guardian is left or is able to act, then who will be the guardian for your minor child(ren)?
When both parents are deceased or incapacitated
After the death, incapacity, or inability of the surviving parent of a minor child, the court will look to any written declarations of that surviving parent to determine who will serve as guardian of such minor child.
If you don't do this ahead of time, then the Court will decide for you.YOU NEED TO NAME A GUARDIAN FOR YOUR MINOR CHILD in a legally valid and appropriate document.
WHAT ABOUT THE ASSETS MY MINOR CHILDREN WOULD INHERIT FROM ME?
In regards to the assets that your minor child will inherit from you, you should be aware that minor children cannot legally own property.
1) you are married and you and your spouse die without a will (assuming you both have children from the same marriage),
2) you are divorced from your spouse and have minor children, or
3) you are the last surviving parent of your minor children,
then those children will inherit your property (if you do not have a will that states otherwise). Stop and think about the fact I just mentioned...minor children cannot legally own property.
Whether your assets consist of a house, bank accounts, life insurance policies, retirement plans, no matter the value, a minor child will not be able to legally own such property. Even if you have told someone you want them to be the guardian of your minor children when you die, these financial institutions will not release funds to such guardians until they are appointed by a court. This is how the guardianship of estate comes into play.
Guardianship of Estate
The guardian of estate is legally entitled to collect and possess the assets belonging to the minor child and would have the power and authority over such financial assets and financial affairs of such minor child.
The downside of guardianship of estates is that they are an expensive, cumbersome, COURT SUPERVISED, legal process that will require a person (who you most likely trust) to regularly account to the court on how they spend your child's money and ask for permission on how to spend such child's money. If you don't trust the person that will become your child's guardian of estate over their funds, then requiring them to report to the court, in theory, is a good idea. The flip side is that by statute, such guardian of estate can pay for their legal fees to become appointed and regularly account to the court out of the funds of that estate (e.g., your child's inheritance from you). These types of legal fees to have someone appointed as guardian of estate and to have an ongoing, required accountings can quickly run into thousands of dollars in legal fees, and can quickly eat up what you have left for your child.
The good part is that you are educating yourself now and finding out that a guardianship of an estate of your minor child's funds can be avoided if you engage in the proper legal planning (this includes the legal analysis and advice on how to properly plan for this).