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Parents passed without a will, now what?

According to the Centers for Disease Control (CDC), approximately one-sixth of children in the United States suffer from developmental delays. One of the most well-known types of developmental delays is autism and the myriad of conditions on the autism spectrum. Many conditions may impact your child and have varying degrees of impact on their life. Depending on the severity of the condition your child may be relatively fine in their day-to-day life. However, if the condition is severe then you may be looking at a situation where you or another person needs to provide your child with a lifetime’s worth of care.

As a parent of four small children, I have an idea of what you may be going through in terms of worrying and concern over the basic types of care that you may be able to provide your children with. I think across the board that parents are always concerned that they are not doing enough to support their kids. Almost no parent that I could imagine would think to themselves that he or she is doing too much for their children. This may have nothing to do with finances, either. You may want to spend more time with your child. You may want to help your child solve a particular problem in their life. Whatever it is, you as a parent not only want what is best for your child but are willing to sacrifice on behalf of your child to provide that help.

Having a child with a special need takes that willingness to sacrifice to a whole new level. Every parent sacrifices in various ways for their children. However, a parent with a special needs child sacrifices in a particular way which requires even deeper cuts in more meaningful ways. Whether the special need is mental or physical, as the parent of a special needs child the responsibility to care for him or her does not go away at any point in time. This is a responsibility that you will have for years to come. In many cases, you may be the primary caregiver for your child as he or she enters adulthood.

None of this should be new information. Parents have a difficult time sometimes seeing how to help their children beyond the immediate of their day-to-day lives. Whereas you may want to do what is best for your child this morning, this afternoon, and this evening, you may be losing track of how to care for your child in the long term. It can feel like, as a special needs parent, you are so stuck in the details of everyday living that you can’t focus on the macro-level issues which either impact your child now or will in the future.

This is what we are going to discuss in today’s blog post from the Law Office of Bryan Fagan. If you are the parent of a special needs child, then we are going to discuss some topics related to estate planning that you should look into or at least consider contacting our office about. Our licensed estate planning attorneys know what it takes to more than adequately prepare for the next phase of your life with your special needs child. We can talk with you about your situation, what you are going through, and what an estate plan is for a person in your position.

A free-of-charge consultation with one of our experienced family law attorneys awaits you when you contact us. These are no-obligation consultations where you will sit with a real estate planning attorney- not a paralegal or someone whose job title is even more obscure. An attorney will be facing you in our office, in a video chat, or will be on the phone with you to go over the issues discussed in today’s blog post and any others that you are curious about. Do not go through this important scenario without options. The way that you gain options is to learn as much as you can about a subject and then make decisions that are in the best interests of your child.

Financial independence may prove to be a challenge for your special needs child

While people with special needs live with growing independence regularly, this is not something that you can necessarily expect in your situation. Rather, you need to anticipate and plan for a situation in which your child is not able to live and work independently. Whether this means that your child will be living with you as an adult or will at least be supported by you as an adult is up to you and what you believe to be a realistic range of possibilities. Being during caring for your child and now having to think ahead to caring for your child as an adult may be a mentally and physically draining and challenging exercise. With that said, it is the responsible thing to do and you would be doing your child a great disservice by not considering all of the relevant issues to that situation.

This means that you cannot bank on a future where you “only” need to provide for your child until high school graduation or at worst college graduation. Of course, things can change regarding the diagnoses made for your child and how his or her condition is impacted by improvements in medical care. However, you need to think clearly about what sort of issues your child has and then how you are going to handle those challenges in the future. Consider that this blog post may be the start of something big for you and your family. The best time to have started your estate planning was yesterday but the second-best time is today.

Consequences of dying without a will

The consequences of dying without a will for your special needs child can be significant. When you die without a will that means that you die intestate. The state laws of Texas regarding the intestate distribution of property will take over if this is the case. A probate court judge would interpret your specific family circumstances in terms of your heirs and the property you own before determining who gets what. This is not a fun process to be a part of for your family especially if they know a special needs child of yours should be receiving most or even all your property if your wishes had been reduced to a simple will.

What is most difficult for families to work through if a loved one dies without a will is that these laws on the intestate distribution of property are cut and dry. The probate court judge will not have a lot of latitude to make decisions that are not exactly in line with the probate code. Therefore, equity, the special needs circumstances of your child, the relationships that you have with family who stand to inherit property from you, and a host of other concerns are not at all considered. Rather, the judge will essentially flip open the Texas code book on property distribution and make decisions about your situation from that book. Not exactly the legacy that you want to leave your family with.

It is possible, in some scenarios, for a person’s wishes to be achieved through intestate distribution after he or she has passed away. For example, consider a situation where you die without a will. However, you would want your spouse to receive some of your property and a life estate in your home. You also have children with whom you share good relationships. In a situation like this, you may find out that the laws in Texas match up with what you would have done had you had a will drafted. This wasn’t necessarily good planning, but it was you getting very lucky. However, not everyone reading this blog can plan on something like this happening in your life. It is a rare situation where you happen to fall into a circumstance where your estate is distributed according to the estate code just as you would if you had a will.

Fairness is the benefit of having a will. You can define fairness however you would like. Consider that what is fair for you may not be fair for me. Therefore, your will can reflect your particular values in terms of fairness, equity, and things of that nature. You may have a completely different view of fairness than anyone else. However, that does not need to stop you from being able to build a wall that is fair in your estimation. Having a will, especially one where you received assistance from an experienced family law attorney, can be said to have a positive impact on your family in ways that you may not have considered previously.

Your special needs child stands to benefit the most from you having a will. Being able to have autonomy over your assets after you pass away is a huge advantage that someone who has a will can take advantage of. The reality is that you will not be here to be able to oversee the life of your child nor the distribution of the property that you worked so hard to accumulate. The executor whom you name in your will and the guidance of the will itself are the main mechanisms that you will leave for your family after you pass away. By creating a will, you are telling the world that you are going to be intentional about how your property is divided after you pass away.

Going to probate court when you die without a will

If you die without a will then your estate will need to go through the probate process. This is the legal case that we discussed earlier which sees to it that your heirs are identified and then the estate code is followed relating to the property that will need to be divided. In that proceeding your child (if he or she is a minor) will be assigned a guardian ad litem. A guardian ad litem is a person who is appointed to look after the best interests of your child at the court level. A relative of yours, an attorney, or someone else may be named as guardian ad litem in your probate case. This is where the reality of the situation will hopefully spur you to action. If you fail to take action and do not have a will when you pass away, then a judge will step in and be forced to make those decisions for you.

Keep in mind that another consideration that you may need to give regarding your special needs child receiving property out of your estate is that if your child does inherit property from you then this may cause problems for their receipt of benefits. There are income and asset caps that will impact your child and if he or she suddenly receives a lot of money from you then this can jeopardize their ability to remain on those government programs, like Medicaid, which your child may rely upon to receive the care that he or she needs.

For one, within a will, you can name a person that you would like to be named as a guardian of your child. A guardian will step in and take care of your child, likely with income and assets provided by you, often through a trust. This guardian can fulfill these duties even while your child is technically an adult as far as their age is concerned. There may be a family member that you have in mind that you can talk about this responsibility before drafting a will. In this way, you will be able to exert some control over a situation that is very important to the overall well-being of your child.

What about siblings being left money for a special needs child?

In addition to having a will, you may have already had an idea to work on the side with your special needs child and their sibling to have the sibling take money that you give to him and use that money to care for your special needs child. While there isn’t anything necessarily wrong with this sentiment, I would caution you on any unintended consequences that this decision may have for your family in the future. Most of these unintended consequences have to do with changes in the makeup of your family which you may not be able to anticipate occurring after you pass away.

For example, suppose that your child were to get a divorce and a portion of the money you leave to your child would then have to go to their spouse in the divorce settlement. Keep in mind that this was money that was supposed to go towards the care for your special needs child. Now it is ending up with your child’s former spouse. Or your child may get into legal trouble and have a judgment levied against him where a portion of those benefits provided to your child would be taken to satisfy that judgment. The simplest scenario that could play out in this situation is your child spending the money given to him or her for your special needs child. Without your supervision, it is not farfetched to see this happening.

A special needs trust is the better option for you and your family. What a special needs trust can do is create an arrangement where this trust is funded with assets of yours and a trustee is named who can oversee the distribution of that property at certain events and for certain purposes. Some documents went into the creation of the trust and there are obligations for the trustee to follow the terms of the trust rather than to do what he or she wants to do instead. This way there are some checks and balances which would be in place and can hold the trustee accountable and protect your special needs child at the same time.

Overall, there are many ways for you to care for your special needs child even after you have passed away. However, all those methods require intentionality on your part. You will not be able to set these things up without having a plan in place. If you would like to learn more about the different methods of estate planning that may be available to you then please do not hesitate to contact the Law Office of Bryan Fagan today for a free-of-charge consultation.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas estate planning as well as about how your family circumstances may be impacted by the filing of a probate case. Thank you for joining us today on our blog post and we hope that you will stop by again tomorrow as we continue to post original content about the world of Texas estate planning.

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