What Will Happen in Texas if You Die or Become Incapacitated Without Naming a Guardian for Your Children?
As a parent in Texas, it is your right to name the person or persons who will take care of your children if you die or become incapacitated and cannot care for them. However, in order for you to name the guardians of your children, you must take certain steps to ensure that your wishes are carried out. If you don’t name a guardian for your children, a judge in a Texas court will appoint a guardian. Depending on your situation, the person the judge selects may not be the same person you would have chosen. The court will usually appoint a guardian for your child based on the following guidelines if no guardian has been named and the other parent is not living or is unable to care for the child:
The problem with using the default rules in Texas is that it makes the assumption that you would choose a close relative to raise your children and that your relatives will agree on who should raise them. For instance, which grandparent(s) should raise your child if you and your spouse die; yours or your spouse’s? In some cases, the parties may be able to agree on who should be named guardians. In other cases, where the grandparents or other relatives cannot agree on who is most suited to care for the child, this could result in a time-consuming and costly legal battle that causes tremendous discord in the family.
If you want to name a close family friend as guardian of your child rather than a relative, it is essential that you execute an estate planning document that states your wishes. By failing to designate a guardian for your child, you are giving up your right to make that choice and are essentially handing it over to the Texas court system.