If a Child’s Parents Pass Away, Their Future Could Be Dictated By the Strength of an Estate Plan
Every time we read the news or spend too long scrolling through social media feeds, we encounter stories of tragedy and loss. Extending sympathy and offering condolences is easy, but can raise difficult questions about our own mortality.
For parents, discussions about death hit especially hard. If you were hurt in an accident—on the way to work or while going to the grocery store—who would take care of your child while you’re in the hospital? And what would happen in a worst-case scenario, when the odds of recovery seem slim?
Ross & Shoalmire have spent years helping Texarkana families find good solutions for questions that don’t always have easy answers. Our experienced team of Texas and Arkansas Estate Planning Lawyers could help ensure that your child’s future is secure after the unthinkable happens. Read more to find out why estate planning is a matter of practical necessity, then contact us today to schedule your initial consultation.
Life’s Uncertainty Makes Planning a Matter of Practical Necessity
If you’re married and living with your child’s other parent and something happens to you, the right to raise your child would likely remain with your spouse. But if you’re both gone, the question of where your child might go is much more complicated.
Your Rights as a Parent
Being able to make decisions on your child’s behalf and in their best interest isn’t just a matter of principle—it’s a right guaranteed by the Constitution, affirmed by the Supreme Court, and reinforced by the laws of your state.
In both Texas and Arkansas, parents are entitled to make decisions about:
- Where their child should live.
- How their child should be raised.
- What type of education they should receive, and what values it should impart.
You can’t make these decisions if you pass away before your time, but you can take concrete steps to ensure that your preferences are honored and that your child’s welfare remains a top priority.
Why Writing a Will Could Guarantee Your Child’s Well-Being
People often make the mistake of thinking that a last will and testament serves little purpose beyond naming heirs and directing the distribution of inheritances. In reality, your will can do much more than dictate the terms of your estate: it can be used to designate a guardian for your minor child, letting you exercise your own judgment in determining who’s best equipped to provide care in the event of an incapacitating illness or fatal accident.
Guardians, of course, have many of the same rights and responsibilities as parents—they’re not duty-bound to honor your instructions to the letter, and could make decisions you’d find disagreeable. But choosing a guardian, at the very least, gives you the chance to put your child’s upbringing in the hands of someone you know and trust.
What Happens If You Don’t Write a Will or Don’t Name a Guardian
If parents pass away without a will and don’t make guardianship arrangements for their minor children, the court will be forced to appoint a surrogate. Arkansas and Texas have different laws on guardianship proceedings, but both states employ a similar logic when assessing candidates.
In general, preference is given to:
- The nearest living relative or ascendants of the child—such as their grandparents, or great-grandparents.
- If more than one ascendant is alive, the court will consider each ascendant’s circumstances to determine who can best provide for your child.
- If no ascendant is alive, the nearest of kin will be appointed. This could be your sibling or your spouse’s sibling.
Guardians must consent to the court’s request. They cannot be forced to care for a child if they don’t wish to or if they lack the resources needed to raise an orphaned child alongside their own children.
In any case, guardianship proceedings can be contentious. If more than one person wishes to have custody of your child, they may petition for priority or challenge a nomination. Even if the end result is better for your child, the process of selection could take months, leaving your child to live in uncertainty—and, potentially, as a ward of the state for an indeterminate length of time.
Your Child’s Rights to an Inheritance: Why No Estate Plan Invites Risks
Your estate plan is your only means of preserving whatever investments you’ve made in your child’s long-term success. Writing a will isn’t just a way to name a guardian—it’s a prerequisite to protecting your child’s inheritance from mismanagement.
Statutes for both Texas and Arkansas indicate that anyone who dies without a will, a trust, or other estate plan is classified as dying intestate. If both parents die intestate, their estate assets are divided in accordance with a stringent legal formula. Under most circumstances, this means that their child stands to inherit the entirety of their joint or separate estates.
While intestacy laws provide a veneer of protection, they can cause longer-term problems. Minor children cannot typically inherit property or large sums of money until they turn 18. So inherited assets must be managed by a competent adult in the meantime, such as:
- Your child’s guardian. They may petition the court to receive and oversee assets. Once your child turns 18, the guardian must transfer the assets to them.
- Custodial accounts. You can establish these as a contingency, or the court can order one created after your death. Custodial accounts allow for the designation of what’s called a guardian of the estate to manage inherited assets. This entity doesn’t have to be the guardian of your child.
- Custodial trusts. Probate courts can oversee or authorize the creation of a custodial trust, which lets a designated trustee manage inherited assets in the best interest of your child. The trust may or may not permit the child’s guardian to request funds for expenses like food, health care, and educational costs.
Every option for intestate succession presents its own risk. Even if a guardian is committed to using your estate assets responsibly and for the sole benefit of your child, they may not have the time, experience, or resources needed to reallocate investments or maintain an inherited property.
Furthermore, guardians cannot dictate how an inheritance is spent after the child reaches the age of majority—meaning that your child could receive significant wealth after turning 18 or 21. Unless they’re incredibly and unusually prudent, they could squander what they’ve received
Preserve Your Peace of Mind with an Estate Plan
Making an estate plan is the only way to protect your child from life’s many uncertainties. Ross & Shoalmore’s skilled and compassionate Estate Planning Lawyers could help you make thoughtful choices and preserve your peace of mind by:
- Reviewing and revising an outdated estate plan that was written before you had children.
- Drafting a valid Arkansas will or Texas will that includes guardian designation.
- Talking through your concerns about choosing a guardian, and helping you decide on arrangements that make sense for your finances and your family situation.
- Exploring options for keeping your child’s inheritance safe.
- Discussing whether a revocable living trust or other estate planning tool could help you condition an inheritance to ensure that a young child isn’t given too much money at too early an age.
We want you to feel confident that, no matter what the future holds, we’ll help you make a plan that protects your child’s future.