Who Will Get Custody of Your Children if You Die Before Naming a Guardian?

We all have tasks we just can’t get off of our “to-do” list.

For me it’s taming the laundry mountain monster currently living in my three year old’s bedroom. It’s really just a pile of unfolded (mostly) clean clothes. Thanks to its proximity to the laundry room, my preschooler’s room is the repository for laundry that has made it through the washer and dryer but hasn’t made it’s way back to its proper home.

I’ve tried to tame this beast. Oh, how I have tried. Doing a couple of loads a day,  rewarding myself with Netflix and a glass of wine while I fold laundry. Nothing makes the monster retreat, not even for a day.

Based on the amount of laundry I do, I swear there must be people living in my house that I haven’t met.

For a lot of parents, deep in the throughs of sleepless nights, work deadlines, and endless requests for snacks, the one task they can’t get off of their “to-do” list is naming a guardian for their children.

I get it. We all know in theory that we’re going to die someday. But no one wants to think about dying young, leaving their young children as orphans.

An unlikely scenario, yes, but still possible. A few months ago there was a story in the news about a couple who survived the Las Vegas shooting only to later die in a car accident, leaving behind two children. It happens.

So to give you a little more motivation, let’s talk about what would happen to your children if you and their other parent were to die before you got around to naming a guardian.

A Judge Will Decide Who Gets to Raise Your Kids

In Texas, if a child is orphaned and no guardians were named by the parents, a judge will appoint a guardian. The list begins with any surviving grandparent, followed by any sibling of the decedent, followed by any other qualified relative or interested person.

There is no preference for one sibling over another (meaning the mom’s siblings are not preferred over the dad’s, and vice versa).

The judge will decide the guardian based on what is in the best interests of the children. Factors the judge will consider include the living conditions of any proposed guardian and the previous relationships between the proposed guardian and the children.

The judge will also ask the opinion of any minor child above 12 years of age.

So what’s the problem?

For starters, while the judge sorts through the list of potential guardians, your children could very well be in foster care.

The judge doesn’t know you or anything about your family. For example, he doesn’t know that you think your sister-in-law and her husband are doing a terrible job raising their own children and you would never want them raising your own.

Maybe your extended family doesn’t get along or can’t agree on who would be the best guardian for your children. This could result in a legal battle over guardianship.

Finally, maybe you wouldn’t want any of your relatives to have custody of your children and would have preferred your close friend and his wife to raise them. If you didn’t take the time to name them as guardians, they won’t be the ones raising your children.

It’s Easy to Name a Guardian for Your Children

If your excuse is you haven’t gotten around to doing your will, stop right there.

The Texas Probate Code makes it possible to legally name a guardian for your children in a document separate from a will.

In Texas, you can legally name a guardian for your children in a document that is:

  • Written wholly in your handwriting; OR
  • Signed in the presence of two credible witnesses 14 years of age or older who are not named as guardian or alternative guardian in the document.

You should also attach a self-proving affidavit signed by the parent and two witnesses attesting to the competency of the parent and the execution of the document.

That’s it.

Don’t delay. Start talking with your spouse tonight about who you would like to raise your children if you are unable to do so. Consult with an estate planning attorney for additional guidance on naming a guardian for your children.

What task can you not get off of your “to-do” list? Leave a comment or send me an e-mail.

Disclaimer: This website is made available for educational purposes only as well as to give general information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and the publisher. The website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Copyright © 2018 by Siobhán Fitzpatrick Kratovil. All Rights Reserved.

 

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