Godparents Lack Legal Rights Unless Named as Guardians

August 21, 2024

Choosing godparents for your children is an important decision for many families. However, it’s crucial to understand that godparents lack any legal rights, unless named as guardians in your will. If you’d like your children’s godparents to serve as guardians in an emergency, consider if they’re suitable for the responsibility and take the legal steps needed to recognize them as guardians.

Parents often choose godparents to have a religious or spiritual influence on their children. They are typically involved in special ceremonies, such as baptisms, and may play a supportive role in their children’s upbringing. However, being a godparent does not grant any legal rights or responsibilities over the child.

On the other hand, a guardian is legally responsible for the care and upbringing of a minor child if the parents pass away or are unable to care for them. According to Forbes, guardianship is a significant legal role that includes making decisions about the child’s education, healthcare and general welfare.

The main reason godparents cannot automatically become guardians is that the roles are different in nature and responsibility. While godparents are chosen for their moral and spiritual guidance, guardians are chosen to take on the full parental role in case of an emergency. While there is overlap between these roles, a capable spiritual guide will not always have the time and resources to become a parent.

Choosing a guardian for your children is a complex and often emotional decision. Here are some key factors to consider:

Lifestyle Fit

Think about the potential guardian’s age and life situation. Asking someone to raise your children is a big request, and choosing someone whose lifestyle can accommodate this responsibility is essential. For example, a guardian with grown children might face a significant lifestyle adjustment if asked to care for young children again.

Location

Ideally, the guardian should live near your home. This minimizes the disruption to your child’s life, allowing them to stay in the same school and community, which can be a source of comfort during a difficult time.

Financial Circumstances

Raising children can be expensive. Make sure that the potential guardian is financially stable, and consider setting up a trust to cover your child’s expenses. This will help avoid placing a financial burden on the guardian and ensure that your child has the resources they need.

Shared Values

Choose a guardian who shares your values and parenting philosophy. While no one will be a perfect match, it’s important that the guardian can provide a similar upbringing to what you would have wanted for your child.

While many consider naming a married couple as co-guardians, it’s often simpler to name a single individual. This helps avoid complications if the couple divorces or disagrees about how to care for your child. You can also name one or more successor guardians who will take over if the primary guardian is unable or unwilling to take on the role when the time comes.

Always ask the person you want to name as guardian if they are willing to accept the role. This way, you can be sure they’re prepared and willing to take on the responsibility. Naming someone without their consent can lead to confusion and complications. In most states, you must include this information in your will to legally name a guardian for your minor children. This is a critical step to ensure that your wishes are followed and to avoid leaving the decision up to the courts.

If you don’t name a guardian in your will, the courts will decide who will take care of your children. This can lead to family disputes and result in a decision that may not align with your wishes. Naming a guardian in your will gives you control over who will care for your children and helps stabilize them during a challenging time.

Remember, godparents lack any legal rights, unless named as guardians for your minor children in your estate plan, Choosing a guardian for your children is one of the most important decisions you will make as a parent. Consult an experienced estate planning attorney to discuss your options. If you would like to learn more about guardianship, please visit our previous posts.

Reference: Forbes (May 29, 2018) “Selecting Your Children’s Guardians Is Very Different Than Naming Their Godparents”

The Estate of The Union Season 3|Episode 10

The Estate of The Union Season 3|Episode 8 is out now!

August 19, 2024

The Estate of The Union Season 3|Episode 8 is out now! We all accumulate stuff as we go through life. When someone dies, what to do with all the stuff the deceased owned can be complex and exhausting.

It can also create fights over Who Gets What. In this edition of The Estate of the Union, Brad Wiewel interviews Ann Lumley, the Director of After Life Care at Texas Trust Law. Ann has seen just about everything that can happen with an estate where stuff (otherwise known as heirlooms and collectibles) can be an issue. Ann helps dissect the problems and highlights some strategies to help avoid collisions that often occur.

In each episode of The Estate of The Union podcast, host and lawyer Brad Wiewel will give valuable insights into the confusing world of estate planning, making an often daunting subject easier to understand. It is Estate Planning Made Simple! The Estate of The Union Season 3|Episode 8 is out now! The episode can be found on Spotify, Apple podcasts, or anywhere you get your podcasts. If you would prefer to watch the video version, please visit our YouTube page. Please click on the links to listen to or watch the new installment of The Estate of The Union podcast. We hope you enjoy it.

Texas Trust Law focuses its practice exclusively in the area of wills, probate, estate planning, asset protection, and special needs planning. Brad Wiewel is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. We provide estate planning services, asset protection planning, business planning, and retirement exit strategies.

Estate Planning is Critical for a Single Parent

August 15, 2024

Raising a child or children by yourself is challenging on many levels. Single parents have very little spare time or resources. Estate planning is critical for a single parent, even more than if another parent was involved, as discussed in a recent article from The News-Enterprise, “Single parents must be deliberate in estate planning.”

Two key decisions to be made with minor children are who to name in a will as their guardian, the person who will raise them if the parent dies or is incapacitated, and who will be in charge of their finances. If another biological parent is involved in their care, things can get complicated.

Whether or not the other parent will be named as a guardian who will take custody of the child(ren) depends on whether or not they have any legal custody of the children. If the parents were married at one time but the marriage ended after the child was born, there is likely to be a separation agreement addressing custody.

If both parents share custody, the surviving parent would take custody of the child. This is standard practice, regardless of who has primary custody.

But if the parents never married and no one pursued an order of paternity or entered a custody order recognizing the legal rights of the noncustodial parent, or if a parent has lost any legal rights to the child, the parent needs to name a guardian and an alternate guardian.

Even if there is a surviving parent, you’ll want to name at least one guardian and one contingent guardian. There are instances when the noncustodial parent prefers not to become the custodial parent, even if the child’s other parent has died. There are also cases where the noncustodial parent is not fit to raise a child, so having other potential guardians named is a better idea.

Separate from the guardianship issue is the decision of who should manage the assets left for the child. You have a right to name the person of your choice to oversee these funds, regardless of whether or not the other parent is living. In most cases, there are two general options:

Conservator: This is a court-appointed person who is responsible for any assets left outside of a trust or any income received by the child. The conservator can be the same person as the guardian, but it does not have to be the same.

Trustee: A best practice in estate planning for a child is to leave the property in trust to be distributed for specific purposes, like education, health care, and general support. Assets can be left in trust through a last will and testament or through a trust set up while the parent is living to benefit the child.

Estate planning is critical for a single parent. An estate planning attorney should be consulted to determine how best to structure planning when there is only one parent. This protects the child and gives the parent peace of mind. If you would like to learn more about planning as a single parent, please visit our previous posts.

Reference: The News-Enterprise (July 5, 2024) “Single parents must be deliberate in estate planning”

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Ensure your College-Bound Student has Documents in Order

August 5, 2024

Sending your child to college is a major milestone but comes with important legal considerations. Now that they live independently, handling a medical emergency could be much more complicated. The Wall Street Journal makes the case that, as parents, you must ensure your college-bound student has their documents in order. This way, you can help them if they need it in any situation.

When your child turns 18, you lose access to their medical, financial, or academic records. You could face significant hurdles in helping them during emergencies without the proper legal documents. There are four essential legal documents.

A HIPAA waiver allows your child to grant you access to their medical records. Without this form, healthcare providers cannot share any medical information with you due to privacy laws. This waiver ensures that you stay informed about your child’s health and can make informed decisions in a medical emergency.

A medical power of attorney designates someone to make medical decisions on your child’s behalf if they cannot. If your child becomes incapacitated due to illness or injury, you’ll need this document to manage their care. Families without a medical power of attorney will have to delegate important healthcare decisions to people they don’t know.

With a durable power of attorney, you can manage your child’s financial affairs if they cannot do so. This can include paying bills, handling bank accounts, and managing investments. This document is particularly important if your child is studying abroad or becomes incapacitated.

The Family Educational Rights and Privacy Act (FERPA) protects the privacy of student education records. A FERPA waiver allows your child to grant you access to their academic records. This can be important if you need to stay informed about their academic progress or assist in managing their education.

Without these legal documents, you could face significant challenges in assisting your child. For instance, you could be unable to learn about your child’s condition if they become hospitalized. You would also be unable to make decisions on their behalf to manage their care or finances.

Most of these documents can be obtained online for free or through your attorney. Ensuring that the forms meet your state’s legal requirements is essential. Some documents may require notarization. Here’s a brief guide on how to obtain each:

HIPAA Waiver: Available online or from your child’s healthcare provider.
Medical Power of Attorney: Available online, but ensure it complies with state-specific laws.
Durable Power of Attorney: Obtained from an attorney to ensure it meets state legal standards.
FERPA Waiver: Available through your child’s college or university.

The requirements for legal documents for college students can vary by state. If your child is attending college out of state, you may need to prepare valid documents for your home state and the state where your child studies. Consulting with an attorney helps properly prepare and execute all documents.

A durable power of attorney becomes even more critical if your child studies abroad. This document ensures you can manage their financial matters and make decisions on their behalf if they encounter issues while overseas.

Preparing these essential legal documents ensures your college-bound student has their documents in order and gives you peace of mind. Don’t wait until an emergency arises; take action now. If you would like to learn more about planning for college age children, please visit our previous posts.

Reference: WSJ (Aug. 14, 2023) “Before Your Child Goes to College, Complete These 6 Important Documents – WSJ”

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Addressing your Estate Planning during Divorce is Critical

July 31, 2024

When estate planning dovetails with divorce, existing plans need to be redesigned. How much depends on the nature of the divorce, as explained by a recent article from Accounting Today, “Estate planning for divorcing couples.” Spousal rights, beneficiary designations, child custody and property distribution all need to be examined, as well as the distribution of property in the estate plan. Addressing your estate planning during a divorce is critical.

If this is your situation, you’ll need a team of professionals who can work well together. Your estate planning attorney, accountant and divorce attorney will need to be in frequent contact, as so many of these areas overlap. You’ll want to ensure that your separation agreement and estate plan complement each other. Anticipating potential challenges and obstacles in advance is crucial.

Here are a few aspects to consider:

If your estate planning attorney worked with you and the person you are divorcing, they will want to be clear about who they represent for the new estate plan. If it’s an amenable divorce, the estate planning attorney may recommend a respected colleague to help the other spouse.

The same scenario must be considered for the accountant. Did they interface with one spouse more than the other? If a joint return was filed in the past, which spouse would they work with during the divorce and afterward? An accountant’s involvement in an estate plan during the divorce process may be critical to ensuring that there are no discrepancies in the financials.

Beneficiary designations need to be revisited since, in most cases, spouses name each other as beneficiaries. Updating the beneficiary designation will avoid further complications in distributing the assets if something occurs to one of the spouses while the divorce is in process. Beneficiaries only change when the owner of the account actively makes the change. Your soon-to-be-ex may inherit everything if you don’t change the account beneficiary.

Estate planning involves guardianship for minor children, and divorce typically addresses child custody, support and inheritance. If one of the parents dies, who would get custody of the children? How will they be supported? Life insurance may be part of the separation agreement, where the ex-spouse will still be the beneficiary, so funds may be used to support the minor children.

Couples in the process of divorcing may not create new trusts until the divorce proceedings have been finalized. However, suppose trusts were established as part of estate planning before the divorce. In that case, they may be considered marital or separate property, depending on the source of the assets in the trust. This is a conversation to have with your estate planning attorney.

Addressing your estate planning during a divorce is critical. With the guidance of an experienced estate planning attorney, accountant and divorce attorney, it is possible to move through the tumult and begin the next chapter with some peace of mind. If you would like to learn more about planning during or after a divorce, please visit our previous posts.

Reference: Accounting Today (July 5, 2024) “Estate planning for divorcing couples”

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Naming Guardians for Minor Children Is Critical for Parents

July 23, 2024

Naming guardians for your minor children is one of the most critical estate planning decisions for parents. It ensures that someone you trust will care for your children in the manner you prefer if you are no longer able to do so. Failing to choose a guardian can make your passing even harder on your children.

An insightful article from Slate tells of an unplanned guardianship situation. As the story goes, a couple in their 60s had decided not to have children but found themselves as the only available guardians for a great-nephew. The child’s mother passed away, his father was in prison and no one else was available. This forced the couple to fill the needs of a grieving 10-year-old from a different socioeconomic background. While they told of doing their best, it was hard for them and their great-nephew. This story emphasizes the unpredictability of life and the critical nature of having a guardianship plan in place.

An article from Forbes highlights a range of considerations for choosing a guardian. You must consider not just who loves your children but also who can handle the responsibility. Consider their lifestyle, location, values, and the potential guardian’s family dynamics. Are they prepared to take on the emotional and financial responsibility of raising children?

Who would be the first to step in and care for your children in an emergency? Sometimes, the best choice for a guardian might not be immediate family but a close friend or someone who has always been part of your children’s lives.

If your child is old enough, their opinion might be helpful. Asking them could provide insights into who they would be comfortable living with should anything happen to you.

Without a will specifying a guardian for minor children, the courts will decide who will care for your children. This situation can lead to outcomes you might never have intended. By choosing a guardian yourself, you control the process and ensure that your children’s future is in the hands of someone you trust.

Absolutely. Your decision today isn’t set in stone. People’s circumstances and relationships change, and your estate plan, including guardianship decisions, should be reviewed and can be revised as needed.

Becoming a guardian on short notice can be overwhelming. It’s crucial to consider the emotional and psychological support the child will need, such as counseling, and the practical aspects, like schooling and healthcare. Understanding the child’s background and needs will help smooth their transition into your family.

It’s never too early to plan for the future of your minor children. Naming guardians for your minor children is critical for parents, and requires thoughtful consideration and difficult conversations. If you would like to learn more about guardianship, please visit our previous posts.

References: Forbes (Jan. 29, 2020) “10 Tips for Choosing a Guardian for Your Minor Child” and Slate (Jan. 17, 2022) “A Child Has Suddenly Come Into My Care”

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If you are Leaving Property Behind, Consider a Land Trust

July 22, 2024

Estate planning can be complex. However, understanding the available tools can make it easier to protect your assets and provide for your beneficiaries. If you are leaving property behind, consider a land trust.

A land trust is a legal agreement where one party (the trustee) holds the title to the property for the benefit of another party (the beneficiary). This setup can offer privacy, ease of transfer and protection from creditors.

Land trusts offer several benefits:

Privacy: The property owner’s name isn’t on public records.
Control: The beneficiary can direct how the property is managed.
Protection: It can shield assets from certain legal actions.

A land trust can name virtually anyone as a beneficiary, including individuals, businesses and even other trusts. This flexibility makes land trusts a valuable tool for personalized estate planning strategies. Almost any type of real estate can be placed in a land trust. The eligible real estate types include residential homes, commercial buildings, farmland and vacant land.

Creating a land trust involves several steps:

Consult an Attorney: Get professional advice to ensure that a land trust fits your needs.
Draft the Trust Agreement: Outline the terms, including who will be the trustee and beneficiaries.
Transfer the Property: Deed the property to the trustee.

When Mr. and Mrs. Wilson decided to buy a vacation home, they wanted to keep their ownership private and ensure that the property would easily pass to their children. They opted for a land trust. The trust kept their names off public records, providing the privacy they desired. When Mr. Wilson faced a personal lawsuit, the vacation home was protected because it was held in the trust. Their children, named as beneficiaries, will smoothly inherit the property since it will avoid probate.

If you value privacy and have property, a land trust might be right for you. It’s especially useful for those who own multiple properties or wish to keep their ownership details confidential.

A land trust could be the solution if you want to protect your privacy, shield your property from creditors, or ensure a smooth transfer to your beneficiaries. It offers flexibility and control, making it a valuable tool in estate planning.

Planning your estate involves making important decisions about your assets and beneficiaries. If you are leaving property to your loved ones, consider a land trust as a valuable tool to leverage. If you would like to learn more about different types of trusts, please visit our previous posts.

Reference: Investopedia (April11, 2024) “Land Trust: What It Is, How It Works, Types, and Examples”

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The Estate of The Union Season 3|Episode 7 is out now!

July 11, 2024

The Estate of The Union Season 3|Episode 7 is out now! The current immigration debates are nothing new, and are politically charged by both parties. Casa Marianella is an answer – not a complete one, but an amazing one. One that works!

We are fortunate to have Jennifer Long, the Founder of Casa Marianella as a guest. Casa Marianella welcomes displaced immigrants and promotes self-sufficiency by providing shelter and support services. Casa, as it is called, is the most successful and delightful haven for those coming here for a new life.

It’s not a shelter in the classic sense, it seems more like a loving way-station to move people from other places on to success. Plus, Jennifer has a manner of explaining all this is a tone and form that make it easy to “get”. To learn more about the valuable work of Casa Marianella, please visit their website: www.casamarianella.org

If you are interested in volunteering with Casa Marianella, please email volunteer@casamarianella.org.

In each episode of The Estate of The Union podcast, host and lawyer Brad Wiewel will give valuable insights into the confusing world of estate planning, making an often daunting subject easier to understand. It is Estate Planning Made Simple! The Estate of The Union Season 3|Episode 7 is out now! The episode can be found on Spotify, Apple podcasts, or anywhere you get your podcasts. If you would prefer to watch the video version, please visit our YouTube page. Please click on the links to listen to or watch the new installment of The Estate of The Union podcast. We hope you enjoy it.

Avoiding Tax Issues When Gifting to Grandchildren

July 2, 2024

Gifting to grandchildren is a wonderful way to share your wealth with young loved ones. Getting some help at the right time can help ensure that they enjoy a bright future. However, taxes may drastically reduce the inheritance they receive. That’s why avoiding tax issues is vital when gifting to grandchildren, so you are making the most of your legacy.

Gifting to grandchildren can be transformative for them and their future. These gifts can make a difference, whether for education, starting a business, or simple financial stability. However, making the greatest difference will require a keen understanding of estate taxes.

Before a deceased person’s estate transfers to their inheritors, the government levies estate taxes. However, many ways exist to reduce or even avoid estate taxes altogether. Estate tax law is largely progressive and provides many allowances and deductions. In particular, accounts are available to fund your beneficiaries’ educations tax-free.

According to ElderLawAnswers, 529 accounts are ideal for helping your inheritors afford education. These special savings accounts are designed for college education expenses, K-12 tuition, apprenticeship programs and student loan repayments, and they offer significant tax advantages. The money you put into a 529 account grows tax-free, and withdrawals for qualified education expenses are also tax-free.

However, the disadvantage of a 529 account is that it only covers education-related expenses. General-purpose gifting has significant limits if you want to avoid a large tax burden.

The IRS places annual limits on gifting to grandchildren, the annual gift tax exclusion. As of 2024, you can give up to $18,000 per year to each grandchild without incurring any gift taxes. If you stay within these limits, you won’t have to pay gift taxes or worry about reducing your lifetime gift and estate tax exemption.

Another strategy to reduce or avoid estate taxes is setting up a trust. You can structure trusts to manage your assets to meet specific goals. By implementing a trust, you can decide how and when your grandchildren receive their inheritance. This is particularly useful if they are young or not yet financially responsible.

There are various types of trusts to consider, such as:

Revocable Trusts: These allow you to maintain control over the assets and make changes as needed.
Irrevocable Trusts: These remove the assets from your estate, potentially reducing estate taxes. However, you cannot change the terms once it’s set up.
Education Trusts: Specifically designed to fund education expenses, similar to 529 accounts but with more flexibility.

Avoiding tax issues when gifting to your grandchildren will ease your tax burden and maximize your contributions to their future. If you would like to learn more about gifting, please visit our previous posts.

Reference: ElderLawAnswers (Jul. 12, 2018) “Using 529 Plans for a Grandchild’s Higher Education”

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The Estate of The Union Season 3|Episode 6 is out now!

June 17, 2024

The Estate of The Union Season 3|Episode 6 is out now! When struck with an unexpected illness, many families must travel to get the quality of care required to treat their ailment, but cannot afford the expenses of temporarily living in a new city. That’s where Ronald McDonald House Charities steps in.

Ronald McDonald House Charities serves as a beacon of hope for families facing unimaginable challenges. Their mission, deeply rooted in compassion and community, resonates strongly in Central Texas and beyond. Through their tireless efforts, they provide vital support to families with critically ill or injured children, ensuring they have a home away from home during their time of need.

In our upcoming episode, we delve into the profound impact of Ronald McDonald House Charities on the local Central Texas community. Zachary B. Wiewel had the privilege of speaking with Derrick Lesnau, outgoing Chief Operating Officer, who graciously shared his insights into the organization’s mission and the invaluable services they provide.

In each episode of The Estate of The Union podcast, host and lawyer Brad Wiewel will give valuable insights into the confusing world of estate planning, making an often daunting subject easier to understand. It is Estate Planning Made Simple! The Estate of The Union Season 3|Episode 6 is out now! The episode can be found on Spotify, Apple podcasts, or anywhere you get your podcasts. If you would prefer to watch the video version, please visit our YouTube page. Please click on the links to listen to or watch the new installment of The Estate of The Union podcast. We hope you enjoy it.

Category: Family

Godparents Lack Legal Rights Unless Named as Guardians

The Estate of The Union Season 3|Episode 8 is out now!

Estate Planning is Critical for a Single Parent

Ensure your College-Bound Student has Documents in Order

Addressing your Estate Planning during Divorce is Critical

Naming Guardians for Minor Children Is Critical for Parents

If you are Leaving Property Behind, Consider a Land Trust

The Estate of The Union Season 3|Episode 7 is out now!

Avoiding Tax Issues When Gifting to Grandchildren

The Estate of The Union Season 3|Episode 6 is out now!

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