Being in a situation where you pass away with young children is enough to cause many a sleepless night. As a parent of three young children myself, this is not a concern that I actively consider every day, but it is a consideration that has popped into my mind from time to time. What will happen to my kids after I pass away? Will my wife be able to manage without me? Any parent who can think ahead is capable of thinking this way. The real division between parents is between those who will work to do what it takes to prepare for an event like this and those that will only worry but won't take any steps to protect their families.
What are some solutions in wills for preparing for life after you pass away?
As much as you may not like to think about it, the level of success and certainty for your family after you pass away is directly related to your willingness to plan. If this is not a strong suit of yours, you need to be honest with yourself and enlist the help of those who can assist in this regard. Having a support group of people around you who are willing and able to talk with you honestly is a good place to start. Do you have a family member or friend who can speak honestly into your life and help you plan for your future and that of your child? Maybe all it takes for you is a "wake-up call" from a trusted friend or family member?
Next, many people begin to work with experienced probate and estate planning attorneys to better map out a course for their lives to take. Even a person knowledgeable in the field of probate or estate planning law would benefit greatly from the assistance and advice of an experienced estate planning attorney. Creating a trust, will, or testamentary trust within a will for your minor children can help to increase the likelihood that you can sleep through the night and not worry about life events harming you and your family both now and in the future.
Creating separate assets for your spouse and children?
One method of distributing property that seems to work well for blended families is to provide assets to your surviving spouse and two of your children. This solution works for blended families and traditional families alike. Let's assume that you want to be able to provide for your surviving spouse and your children and the children you had with a second person. You would be able to provide for both the children and the children of your first marriage and your surviving spouse outside of a trust.
Many people have heirlooms or family memorabilia that they are especially concerned with getting a property to children and their spouses after their passing. Think about the items in your own home. Even if they are not valuable or worth a lot of money, it could be that they still have some sentimental value or other value in your eyes. As a result, you may want to ensure that these items can successfully be handed down to your spouse or children. To ensure that this occurs, you could include specific language in your will.
The attorneys with the Law Office of Bryan Fagan have previously suggested that clients include language in their will that gives all family memorabilia to that specific family. For example, even if you are in a blended or mixed family, heirlooms or memorabilia from a specific family should be able to go to that family. By this, I mean that your current family with a second spouse should not be able to end up with heirlooms from your initial marriages family. Things like photographs, decorations, art, trophies, and souvenirs are all examples of memorabilia or heirlooms that I have in mind.
To better illustrate this point, let's discuss a hypothetical situation that you and your family could be facing. Suppose that you were married to your spouse for 30 years and raised a family. Your spouse then died and gave all of their property to you. Your spouse has passed away occurred back in the year 2000. One year after your first spouse's death, you remarried. You have remained married to your second spouse since 2001, and you are now visiting with one of our attorneys to determine how to best plan for your estate once you passed away.
The first thing that our attorneys would probably be curious about is how close you and your children are. In this case, let's assume that you and your children are not all that close. In that case, it could be beneficial for your will to include language that gives any family heirlooms from your first marriage in your family check go to those children or the relatives of your deceased first wife. Likewise, any heirlooms or memorabilia from your current marriage should stay with your surviving spouse and their children and family.
Another hypothetical situation could involve you being married to your spouse for nearly 50 years; in those 50 years, you had children and raised a family together. Sadly, your spouse died a few years ago, and one year ago, you remarried. What could a brainstorming session look like for you and your family if you found yourself in these circumstances? Again, an attorney from our office could suggest to you that you will include language that all family memorabilia and heirlooms should go to the children of your first marriage period; this would avoid any situation where misconceptions could occur over where your property is to go at the time of your death. In that case, your children would not have any surviving parents. They would run the risk of having memorabilia or heirlooms of their family be counted among the property that would otherwise go to your current spouse.
How can a will impact your family if you all do not get along with one another?
The sad reality for many families is that you and your children may not get along well together. Consider a situation even if you only have minor children. For example, while your children might be in high school and technically count as minors, the reality of the situation is that they will soon become adults if not in maturity level, then certainly in age. In that case, you cannot simply assume that everything will turn out fine and that they will mature as they get older.
If your family does not get along, then you may want to consider using a revocable trust to protect yourself, your potential beneficiaries under a will, and your spouse. If you foresee a situation where your children do not get along well with one another or with you and your spouse, then the odds certainly increase that there will be a problem when probating the will. A full-on contest of the will is increasingly likely as the stakes rise due to increased acrimony or increased value of the property included in the will. You may even be accused of having had people influence you unduly in creating the will or even being of an unsound mind and, therefore, unable to create a valid will.
A revocable trust can help because a trusted this sort is generally thought to be more difficult to set aside. The fact is that a revocable trust exists even while you are still alive. The terms of a will only go into effect after you pass away. Thus, since you lived under a revocable trust, it is more difficult to argue that you did not understand what you were entering into or creating. This is especially true if you have named an independent trustee to look over the trust rather than serving as trustee yourself. If you can have a relationship with your trustee, then the likelihood that the trust will be held up in court increases that much more.
You may have heard of a situation where a race to the courthouse occurs when a person passes away with a will. Whomever you have named as the executor of your will wants to be able to have the will admitted to probate and obtain letters testamentary. In that case, any costs associated with defending the will come out of your estate rather than out of your executor's pocket. However, if a relative can contest the will before the will is admitted to probate, then your executor will have to pay the costs of defending the will at least until they can seek reimbursement under the estate after they are named as the official executor.
When it comes to a revocable living trust, the person who acts as trustee will be able to continue to serve in that capacity once you pass away. If someone challenges the trust, then the assets can be used to defend the trust. This is as opposed to a probating of a will where there is a 10 day waiting period from when the will is offered for probate and when the hearing can be held over that 10 days. The application to probate the will invites someone to file a contest. This increases cost, time devoted to the case, and the acrimony between parties that may already be unhappy with one another. When it comes to a revocable living trust, there is no 10-day waiting period before a trustee can begin to serve, as well as there has not been any filing at the courthouse.
What happens when one child is favored over another?
Unfortunately, one of the issues that tend to come up occasionally during probate and estate planning cases is our problems with children that are strange from the family. These are issues that affect adult children more frequently the minor children, but I think the subject matter still bears mentioning in a circumstance like this. Would you please begin to think about possible issues your family could encounter due to family dynamics and other at play issues? Bear in mind that even minor children may still be old enough to have problems with you or with your spouse. In that case, there is a real possibility of having a child completely left out of a will or at least minimized for estate planning purposes.
As we just mentioned, circumstances where one child is favored over another are not uncommon in families. Usually, you don't see situations like this in her eyes when it comes to minor children. However, if your children were to develop a rift with you or your spouse, this is a possibility for you to consider. You may end up favoring one child over another if there has been a divorce from their other parent where your child resents you or your other parent due to the divorce. The reality is that while I would not recommend disinheriting in a child, for this reason, that may be something that you would attempt to do.
One thing that I would make sure that you speak to your attorney about is that if you do plan to favor one child over the other for any reason within your will, then you should make sure that the favored child is not someone that you have consulted with throughout the process in creating your will. If you choose to consult with your favorite child in creating the terms of your will, you are putting yourself in a position where your child may invite a challenge to your will on undue influence grounds. If the unfavored child comes back in an attempt to argue that they were cut out of your will by undue influence from your sibling, then this could invalidate the entire will.
Another factor to keep in mind is that if you name a child as a beneficiary under your will and are strange from that child, this may create problems in administering the distribution of your property. When it comes time to probate your will, the court will likely appoint an attorney ad litem. An attorney ad litem is an attorney who represents the court's interests in attempting to complete the court's business as far as administering the will in distributing property. Part of this responsibility is the need to locate all beneficiaries.
They need to locate all potential beneficiaries is a major hassle for a core and can take a period; meanwhile, relatives and beneficiaries of yours who may need immediate assistance from the property will be left wanting because an estranged relative cannot be located. You should speak to your attorney about the possibility of anticipating such a problem and consider changes that can be made to your will to ensure that the will be probated is not delayed because a child or relative of yours cannot be readily located.
Unfortunately, another reason why you may consider not having a child list in your will is that that child has serious health problems and is not expected to live much beyond the time where your will is created. In this situation, you may be better off having you are child be provided within annuity in the will rather than be handed property. You can also create trusts and other types of arrangements to protect your child's interests.
A second is related to physical health problems; mental health problems can present the same issues involved with substance abuse. Your child's situation may not even be one that they created. However, many parents want to ensure that their child is interested in getting better to leave them in the will. This is another great opportunity to leave money in a trust for your child rather than let them inherit the property outright. Appointing someone to overlook the money and ensure that it is taken care of for your child is also a good idea for many families. To create more complex arrangements, you certainly should consider speaking with experienced probate in estate planning attorney. This will allow you all to map out any potential problems that come to be and solve any issues that need to be sorted out in the short term. You may also want to get an experienced attorney's perspective so that you all will not miss out on considering the different outcomes that are possible and the different creative problem-solving solutions that you can conceive of.
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 and probate law attorneys offer free of charge consultation 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 probate law and how your family circumstances may be impacted by different events surrounding probate in estate planning matters.