By Craig Watson
Eddie and Martha and their three small children were driving home one night when a drunk driver swerved into their lane causing a fatal collision. Eddie, Martha, and their baby died that night at the hospital. Two of their children had to be hospitalized. The situation at the hospital was chaotic because no one had authority to sign medical consents for the children’s care. In addition to caring for the two children who survived, funeral arrangements had to be made for Eddie, Martha, and their child. No one had access to Eddie’s bank accounts to pay for funerals or medical care. Eddie’s father, Ted, was pretty sure that Eddie and Martha died without a Will so he didn’t know who would raise his grandchildren and take care of his son’s assets and affairs.
Eddie’s wife’s parents, Joe and Jill Handlin, were also at the hospital. Ted overheard some of the Handlin’s interactions with the medical staff and became concerned. They were aggressively arguing with the medical staff that they were in charge of the children. He remembered hearing from his son that the Handlin’s home environment was not a healthy lifestyle and they were living paycheck to paycheck.
Ted’s attorney told him that if the deceased parents didn’t leave a Will that appointed a guardian to raise the children, the probate court would have to decide that issue. Whoever was appointed guardian would be responsible for raising the children. Ted directed the attorney to immediately file a petition in the probate court to be appointed temporary guardian of his grandchildren. A temporary guardianship is only used when there is an emergency need for a guardian. Since the minor children needed medical care, the temporary guardianship was granted. Ted was glad he didn’t hesitate because he later learned that the Handlin’s filed a guardianship petition in their home county a couple of days later. Because Ted filed his petition first, the case was heard in Grayson County, which was much more convenient than traveling to the courthouse in the county where the Handlin’s lived. One disadvantage of a temporary guardianship is that it expires after a maximum of only nine months and then the expensive process has to be duplicated to establish a regular permanent guardianship.
In addition to filing a guardianship, Ted had to file a petition in probate court to request appointment as dependent administrator of the estates of his son and daughter-in-law. The Handlin’s contested the probates, seeking to be appointed administrators of the deceased parents’ estates. Under the state’s heirship laws, the children would inherit all of their parents’ assets but a court has to first make the determination of heirship based on the evidence presented. A dependent administration and determination of heirship is much more expensive and time consuming than appointing an independent executor based on a well drafted Will. And a court battle between two sets of grandparents competing to be appointed is wildly expensive. After the court determined that the children were the only heirs, the parents’ assets would be retitled into the guardianship to be managed for the benefit of the children.
Ted had wondered how his daughter-in-law’s parents had the money to hire an attorney to fight him in court. He later discovered that the Handlin’s attorney was working on a contingent fee hoping to be paid from the proceeds of the expected lawsuit against the drunk driver. What Ted didn’t know was that an orphan is entitled to a monthly payment from the Social Security Administration. Ted’s attorney explained that the Handlin’s standard of living would immediately improve substantially if they gained custody of their grandchildren because they would be receiving at least $1,000 per month in Social Security benefits in addition to controlling the proceeds from the wrongful death lawsuits, life insurance benefits, IRAs, etc.
The moral of this story is that anyone who has minor children needs to have a Will that appoints a guardian to be responsible for the children’s care. Ted wished he had offered to pay for his son and daughter-in-law to have Wills prepared and signed. It would have saved him lots of time, stress, and thousands of dollars.
Craig Watson’s law practice focuses on Estate Planning, Probate, Guardianship and Elder Law. He is Board Certified in Elder Law by the National Elder Law Foundation as recognized by the Texas Board of Legal Specialization. Formerly a CPA, he has over 25 years of experience. Call 903-813-8500 or go to www.craigwatsonlaw.com.