Of all the unpleasant topics that we have discussed on this blog in the past, I think this may have to be the worst of the worst. Nobody likes to discuss topics related to people passing away. We spend our entire lives trying to do things that extend our lives and it is not pleasant I have to consider What the end of your life could look like. Our mortality is something that we have had to come to grips with repeatedly throughout the pandemic. However, for most of us reading these blog posts the end of our life is more likely to be brought about by an accident than is by a respiratory virus.
For some of us, that was apparent from the beginning. However, For others of us reading this blog post it could be that we had not previously considered the possibility that we may pass away at some point before old age. To double down on this misfortune would be if our spouse also passed away. What if the two of you were leaving dinner one night to return home to the babysitter and your children Only to get into a car accident and pass away? This is an extreme example but the purpose of mentioning it is to help draw your attention to this subject because it is important.
Planning and intentionality are incredibly important when it comes to being able to work on issues related to your family life. Having a plan to help accomplish goals and structure of family life is a huge advantage for many families who otherwise may drift aimlessly between issues. Think about for a moment how a family budget, savings goals, relationship goals, and parenting goals would hold distinct advantages over her family it would never seriously consider any of these topics. On top of that, think now about what your family would do then something happened to you and your spouse at the same time. Although you would not be here to suffer the consequences your children would.
For this reason, I wanted to spend today’s blog post discussing issues related to child custody and conservatorships if you and your spouse pass away simultaneously. While this is a subject we hope never comes to pass in your household the fact that it could mean that we need to put some serious thought into the potential impacts of this type of scenario. Many times if you and your family have disagreements or problems over difficult material like this it would be enough to cause arguments and fighting. However, if you and your spouse can get the same page then think critically about this subject you may be able to avoid disagreements and ultimately avoid problems that could lead to disruptions in your family life. here are our thoughts on what you can do right now to prepare for your children’s lives in the event you and your spouse pass away at the same time.
Avoiding the subject altogether is easier for most people
As we have mentioned, this subject is not one that anyone would like to talk about. If you are the person in the room who likes to talk about your passing then you likely have some other issues that you need to work out in your life. For the rest of us, talking about subject matter related to our passing is not something pleasant to discuss. However, even if we come to grips with this it is still difficult to process what we need to do to prepare for our passing. Nobody thinks that they are going to be the person who passes away at a young age. However, this type of thing happens more regularly than we probably know and as a result, it makes a lot of sense for us to think critically about what it means to prepare for end-of-life scenarios.
This doesn’t mean that we have to pour every ounce of energy we have into preparing for an unlikely yet critical scenario. While no one may want to consider the possibility that they may pass away with young children we would be doing a disservice to our kids if we did not consider what control we would have on the lives of our children after we pass away. Fortunately, we do have some degree of control over determining who will have custody of our kids after we pass. However, you and your spouse must act intentionally and have a plan when it comes to working these issues out in real-time.
When my wife and I began to get our affairs in order this was one of the topics that we put some thought into. What we didn’t want to see happen was our children being put into a situation where there was a great deal of uncertainty surrounding what their life would be like If my wife and I were to pass away while they were still under the age of 18. On a day-to-day basis, the first decision that we thought would impact our kids most acutely was what to do with their custody and conservatorships. Who should we consider when it came to the kids having a place to live after my wife and I were gone.
Fortunately for us, my sister and brother-in-law live in the Houston area and have a daughter of their own. My kids were already close to both of them so it made a lot of sense to ask my sister and her husband if they will be willing to take on the responsibility and burden of raising their nieces and nephews. This is the first place where I see some people not approach this question as deliberately and intentionally as they should. Some people simply put something in writing and then sign the document placing it in their desk drawer. I would offer to you that this is not necessarily the best way to go about things.
True, it is better to have some idea about what you want to do for planning when it comes to these circumstances than to have no plan at all. However, you should come up with a plan and then inform the people whom you intend to have your children live with of your plan and ask them if they’re willing to take on that responsibility. By confirming their willingness and ability to take on the large responsibility of caring for your minor children after you pass away we can avoid the surprise and shock that may come with your passing. Imagine being in the position of my sister and her husband two have just lost too close relatives only to find that those close relatives also placed the care of their children in your hands.
This isn’t to say that I think my sister and her husband would have put my children out on the street. However, I do think that it makes a great deal of sense to go over your plan with family members and to first get their permission to have their names included in a will. Many people consider a will as a document that will only determine what happens to your property after you pass away. While it is true that I will and does provide for the distribution of property after your passing it is also a good vehicle for planning if you have children under the age of 18. The wheel can tell the world your intentions of what you want to see happen with your children after you pass away.
My wife and I have wheels that are mirror images of one another. In both of our wills, we have included language regarding planning for our children until they reach age 18. That planning revolves around them living with and being cared for by my sister and her husband. This is known as a testamentary trust. The testamentary portion of the trust refers to a trust that is created as part of a will. The testamentary trust goes into effect once the will is signed and witnessed and would be dissolved Once all of your children reach the age of 18.
Another piece of the end of life planning that you need to seriously consider is life insurance. In my opinion, if you have any people in your life who depend upon your income then you should also have life insurance. This blog post does not need to become an advertisement for life insurance or the different life insurance products that are available. For that, you should consider contacting an insurance agent or broker to help you learn about the different options that are available to you as well as what may be best for you and your family.
I can only speak to you about what my wife and I have chosen to do for our family. The type of life insurance that she and I have is term life insurance policies. The term of the life insurance is for 20 years. Our thought in purchasing this type of life insurance would be that the life insurance is going to expire at a time when she and I will hopefully have enough in savings where we could put our children in a position where they will be found who live on their own as teenagers and young adults without the insurance proceeds period before that, we would not be able to fully self insure our families or without the assistance of the life insurance period for that reason, life insurance can bridge the gap until you can become financially secure enough to provide for your family in an emergency regarding loss of life.
Term life insurance is fairly simple. For the cost of a pizza and an order of cheesy bread each month, you can purchase a life insurance product that pays out a specific sum of money at the end of your life. Typically this involves obtaining a death certificate and then sending that to the insurance company. I would imagine that investigation would occur to determine the specific cause of death but once everything checks out the face value of the insurance will be paid out to the stated beneficiaries.
Life insurance works well for families who need money after the passing of a loved one. This is true because life insurance does not have to go through probate to benefit the beneficiary. Brother, once a death certificate can be obtained and forwarded to the life insurance company the beneficiary could receive the stated sum of money. Most life insurance policies also ask for secondary or backup beneficiaries if your beneficiary predeceases you or passes away at the same time. This would be very important for families like yours who may find that both parents pass away in an accident at the same time.
What happens if you do not prepare for the end-of-life scenario involving your children?
All of these planning devices that we have talked about so far in today’s blog post can be a lot of good for you and your family both for Peace of Mind for you and Security for your children if the unfortunate should happen to you and your spouse. However, I know not everyone reading this blog post will be able to put into action these recommendations. Rather, there will be some who run out of time, don’t have the energy, or otherwise failed to put any of this advice into motion. For those folks, this is what will likely happen with your children after you and your spouse passed away.
If you have close relatives like grandparents, siblings, or other family members in the area then they will likely take your children in if something happens to you and your spouse when you pass away. It is difficult to be able to judge exactly who would step up and take on this responsibility. However, in most families, we’ll see someone step into the void and care for your children at least on a short-term basis. The real question will be what happens if you do not have family who readily step into the void left by your passing.
If no family members volunteer to take on guardianship roles for your children then The state of Texas will take temporary custody of your children. This means that Child Protective Services will be in the temporary custody of the kids and we’ll be able to not only house the children but determine their future and make decisions on their behalf. I think any parent out there reading this would likely agree that you do not want to put it in the hands of the state of Texas to make important decisions for your children. Rather, you would want to be able to chart the course of your children as much as possible if something were to happen to you and your spouse involving loss of life.
The way it usually works is that a grandparent is given the first opportunity to take on guardianship of a child. If you have multiple grandparents in the area that are willing and able to take on this role then a judge would make a decision based on the specific circumstances of your family and the best interests of your child. An attorney would be appointed to represent the interests of your child independent of the state of Texas or any relative. Your siblings and the uncles and aunts of your children would also be able to take on potential child-rearing responsibilities.
The trouble in all of this is that the court will have no idea about your specific intentions when it comes to raising your children. What kind of upbringing did you provide your children with behind closed doors? A court can make assumptions based on certain factors but will never know exactly what was most important to you. You may have been dead set against one particular sibling of yours ending up with your kids but unless you state something to that effect in a will a court would never know your intentions. Likewise, if you intended your children to be raised in a certain religious background but never mentioned that to anyone or stated that for certain in your will then this information will be lost in a court.
What you can also do in your last will is specify how you want matters related to your estate to be handled if you and your spouse pass away at the same time. You can even put money into a trust that can be disbursed to your children at certain important life events such as they’re turning 16 and needing money for a vehicle or they’re reaching college and needing money to pay for school. This is not to say that your child will be left helpless after you pass away if you do not have a will. However, you need to know that there are risks associated with passing away without a will and without making your intentions known regarding the well-being of your children.
Questions about the material contained in this 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 family law and estate planning attorneys offer free of charge consultations six days a week in-person comment over the phone. These consultations are a great way for you to learn more about the world of Texas family law and estate planning as well as about how your family circumstances may be impacted by the filing of a probate, divorce, or child custody case.