Why is it important to make sure your Last Will and Testament, Trusts, and other estate planning documents are up to date, especially if you have minor children?
Consider the following case that we recently had to litigate:
Although we were successful for our client, in the end the family relationship was strained.
Divorced parents have an eight year old son. Mother and Father were the joint managing conservators. The child was living with mom in another county. So far nothing out of the ordinary, right?
As a result of mom not being suited to take care of the child, Father picks up the child to live with him. Mom agreed that it was best for the child to live with Father. Child was with father and father’s family for 4 years. Maybe your still thinking, so what’s the problem?
Father dies unexpectedly in a car accident. Father had no estate planning documents in place regarding who the guardian of child should be in the event of his death. Mother immediately picks up the child to go back to live with her. Within a year, mother falls ill and passes away. Mother also had no estate planning documents in place regarding who the guardian of child should be in the event of her death. What happens next?
Maternal and paternal families collide over who should be the child’s guardian.
We went to court so a judge could decide who would take care of child. We represented the paternal aunt and the opposing party was the maternal second cousin to child.
A Judge must consider the Texas Estates Code's statute that specifies who has priority to be a guardian over a minor child. However, that is not all the Judge considers. A Judge also must look at who is suitable to serve as guardian, in other words, who will be in the best interest of the child. Also, our Estates Code lists who is disqualified from being appointed as guardian, regardless of whether they have priority.
The Judge found our client not only had priority to be the guardian, but also found that she was suitable to be appointed. Therefore our client was appointed as the guardian of her nephew.
Keep in mind, although in our particular case the result was the right one, it may not be the right one for you, given your family. If you do not have the proper documents in place, the statutes provides the priority of who can be a guardian and also lists who would be disqualified from being the guardian. However, even with the statutes, a Judge, who doesn’t know you or your family gets to decide the individual who will be appointed to serve as guardian. It may not be who you would have ever chosen. Therefore it is important that you not only have your Last Will and Testament, Trusts, and Designation of Guardian signed, but it is also important that you review these documents frequently.
Cases like this tend to tear families apart as opposed to unite them after facing tragedy.