If spouse and I get an a car accident that leads to death. What happens to my children if we have no will? Will a letter be ok?

Asked over 1 year ago - Austin, TX

Was wondering if we don't have a will or trust set up yet and we get an a accident, will a standard letter with our sugnature , stating who gets custody of our kids be significant enough through the courts. Our fear is they will be placed in foster homes until legal custody again in the courts is done.

Attorney answers (9)

  1. Richard Kurt Arbuckle

    Pro

    Contributor Level 19

    11

    Lawyers agree

    Answered . Wills are not expensive, and a letter is much more difficult to deal with. So get a will. Don't go half way when your kids are at stake. Texas has very modern and streamlined will probate, so the things you may have heard in the past, don't apply in Texas. It is easy. All sorts of things can go wrong if it is just a letter.

    This is not legal advice. You should always discuss the specifics of your issue in person with an attorney. Be... more
  2. Malosack Berjis

    Contributor Level 20

    10

    Lawyers agree

    Answered . I'm going to edit the practice area of your post to wills for better exposure.

    This attorney is licensed to practice law in the State of California. The laws of your jurisdiction may differ... more
  3. Jeffrey Ira Schwimmer

    Contributor Level 19

    10

    Lawyers agree

    Answered . This is not a "wrongful death" question. Generally, while a "letter" from you may have some persuasion, it is not legally binding on the court. Most of the time, the governmental agency involved will try to get a close family member appointed as legal guardian or custodian of the child. The problem arises where there is no close relatives, or the relative(s) do not want to accept guardianship, or there is a fight between parties as to who should get guardianship/custody. Get a Will done quickly to include a stated designation for guardian, which will be more controlling. It is also wise to speak to the person(s) whom you would like to be guardians of your children beforehand to make sure they are willing to take on that responsibility.

  4. Charles Adam Shultz

    Contributor Level 19

    10

    Lawyers agree

    Answered . Choosing a guardian is one of the most important decisions parent can and should make regarding their kids. Your wishes should be in writing. Regardless of how you do it, the court will need to appoint the guardian if you both pass away, so there is no reason not to do a Will and name the guardian in your Will.

    http://www.txcourts.gov/gcb/minutes/Attachment%...

    In Texas there is a statutory form declaration that can be used. Because this is so important, I would suggest that you consult an attorney or a least a local legal clinic.

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or... more
  5. James Otto Heiting

    Pro

    Contributor Level 15

    8

    Lawyers agree

    Answered . Without more, the answer is no, a letter is not "ok". It sounds like you are concerned about what will happen to your kids. Spend the little time and little money to do it right.

  6. Don Karotkin

    Contributor Level 16

    6

    Lawyers agree

    Answered . I strongly suggest that you consult an Austin estate planning and probate lawyer. Unless you have essentially no money and no property, you need a will. A will costs a very small fraction of the cost of a dependent probate administration, which is what is necessary when a person dies without a will.

    Please consult the website of the Texas Board of Legal Specialization to find the right probate lawyer for you. A link to the website appears below.

    Good luck.

    www.tbls.org

  7. Matthew C Simon

    Pro

    Contributor Level 18

    7

    Lawyers agree

    Answered . If you are concerned, it will be money well spent to hire an attorney. Good luck.

    The above is general information only and is not legal advice. The information provided does not form an attorney-... more
  8. James P. Frederick

    Contributor Level 20

    6

    Lawyers agree

    Answered . I agree with my colleagues. I would simply add that, whenever minors are involved, a Trust is a much better planning option than a Will. The Trust can avoid the need for probate of the minor's estates, and also hold their share until they attain a reasonable age for them to receive their inheritance. The trust maintains privacy regarding your financial affairs and does not become part of the public record.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******... more
  9. Steven Drew Baker

    Contributor Level 13

    4

    Lawyers agree

    Answered . You have the option of executing a declaration of appointment of guardian for your minor children in the event you pass away or become incapacitated. Under the Texas statute, the document has formalities similar to the execution of a formal will. In determining who makes personal and medical decisions ("guardian of the person") or handling funds they receive ("guardian of the estate"), the court is required to consider your wishes, but at age 14, the court must also consider the wishes of the child. In either case, the court must ultimately make a determination based in the best interests of the child.

    If you have someone in mind who is trustworthy, willing, and able to handle the funds for your children, incorporating a trust into your estate plan would be far less onerous for all involved than a judicial guardianship of the estate. But you need to discuss these options with an experienced estate planning attorney who is aware of all of the relevant facts and circumstances.

    NOTICE: The foregoing is provided for general informational purposes only and is not intended to create, and... more

Related Topics

Guardianship and child custody

A guardianship is a legal arrangement for who will have custody and be responsible for the care of child, or "ward." The guardian acts in the child's interests.

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