For parents of young children, naming a guardian is often the single most important reason to create an estate plan. A guardian is the person who would raise your children if you and the other parent were no longer able to. Deciding this in advance, in a legally recognized document, spares your children uncertainty and spares your family painful disputes during an already difficult time. Ellen Williamson Law explains below how guardianship for minor children works in Texas and how to plan for it.
Why Naming a Guardian Matters
If both parents pass away or become unable to care for their children without having named a guardian, a Texas court must decide who will raise them. The judge does not know your family the way you do. Relatives may disagree about who should step in, and the children may face a stressful, public court process during a time of grief. Naming a guardian yourself puts that decision where it belongs, with you.
Naming a Guardian in Your Will
In Texas, a parent can name a guardian for their minor children in a will. Under the Texas Estates Code, a surviving parent may designate an eligible person to serve as guardian of their minor children after the parent’s death or in the event of incapacity. When a parent has made that designation, the court generally appoints the named person in preference to others, unless it finds that doing so would not be in the child’s best interest.
This is a powerful tool, but it works only if it is set up correctly. A will that is vague, outdated, or improperly executed can undermine your wishes, which is why a Dallas wills attorney can help make sure the designation holds up.
Standby Designations and Written Declarations
Texas also allows a parent to designate a guardian through a written declaration, separate from the will. This can be useful for addressing incapacity as well as death, so that a trusted person can step in quickly if a parent becomes unable to care for the children. These declarations follow specific legal requirements, including formalities similar to those for a will, so they should be prepared with care.
The Court Appointment Process
Even when a parent has named a guardian, a court still formally appoints that person. The named guardian files an application with the appropriate court, the court confirms the designation and the person’s eligibility, and the guardian is appointed and given legal authority to act. Texas also imposes training and other requirements on many guardians.
When a parent has clearly named a guardian, this process is usually straightforward. When no one has been named, it can become contested and lengthy. Our overview of the Texas probate and court process explains what court proceedings generally involve.
Choosing the Right Guardian
Selecting a guardian deserves real thought. Consider who shares your values, who has a genuine bond with your children, and who is realistically able to take on the responsibility. Think about the person’s age, health, location, household, and stability. It is also wise to name an alternate in case your first choice cannot serve, much as you would when choosing an executor or trustee.
Most importantly, talk with the people you are considering. A guardian who has agreed in advance, and understands what the role involves, will be far better prepared than one who is caught by surprise.
Providing Financially for Your Children
The person who raises your children does not have to be the same person who manages money for them. In fact, separating these roles is often wise. Minors cannot receive significant assets outright, so many parents create a trust to hold and manage funds for a child’s benefit until they reach an age the parent chooses. If a child has a disability, our overview of special needs planning explains additional protections to consider.
A complete plan for parents usually pairs a guardianship designation with a trust and clear instructions, so both the care and the finances are handled the way you intend.
Get Help from a Texas Estate Planning Attorney
Ellen Williamson Law helps parents across North Texas put guardianship designations and supporting documents in place as part of a complete estate plan. Our firm works with families through our Dallas estate planning attorney services and our Dallas guardianship attorney page. We offer flat-fee billing for most planning matters, so the cost is clear before any work begins.
To name a guardian for your children and protect their future, contact Ellen Williamson Law to schedule a consultation.