I've been thinking about my age a lot recently. While I am not the oldest man this side of Jerusalem, I find myself in that age group that can now distinctly recall the "what was" of black society (and even perhaps) society as a whole. Sitting in that knowledge amidst a world where both African American and Muslim communities are facing degenerative social/economic/and political forces; I keeping coming back to this word "legacy" or the 'act of preserving a thing.'
I bring this up for a few reasons; however for now; I'll simply say "I'm laying track." This blog series will (hopefully) stay on these tracks, as I attempt to provide a path through many of the confusions, misconceptions, and realities of estate planning in African American and Muslim communities. The destination? In two words..."our survival."
That being said... lets get into our first discussion on your children's GUARDIANSHIP and what it means to bifurcate it.
WARNING! The following information is not legal advice. You should always consult with a qualified attorney in your State before drafting legal documents and (or) making any legal decisions. I have supplied the following information below ONLY as an educational and conversational guide.
LIFE CHANGING EVENT
I will be using this term A LOT so I figure its best to set out my meaning early. In the realm of guardianship of your children, we typically mean either (1) when you die; or (2) if you ever become legally incapacitated. These are the two major life changing events that will frame this conversation.
So when we say children, we should really be saying "Minor." In the State of Texas, a child or minor is defined as a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes, Texas Family Code.
GOLDEN RULE OF TWELVE
The Estate Code (portion of the law that governs Guardianship) provides any child, at least the age of 12 years old, the ability to select their own guardian. The court will still approve/deny the selection. However, it is important to understand that your ability to determine the outcome of guardianship will be strongly effected by the age of your child if/when a life changing event occurs.
TWO HALVES OF THE WHOLE
The State of Texas recognizes Guardianship as a collection of two halves that sort of exist as one ...well..."a whole."
Your child's physical existence, and all that involve sustaining it, are viewed as one half of the whole. Legally, we call it a 'Guardianship of the Person.' Any individual selected to act as this guardian will be responsible for feeding, clothing, and housing your children (and a whole lot more depending on the situation). When most people assign a guardian, this is the person they think of.
However, there is another half of the whole, and perhaps more important. Your child will also have an estate, much like you have an estate. Anything you leave your child will be considered a part of their estate (money, real estate property, personal property, trusts etc.) As a result, someone will have to manage those assets until your child becomes an adult (or emancipated). This half of the whole is called 'Guardianship of the Estate.'
The question that I get is "should my child's guardianship be bifurcated (split up/separated)?"
SHOULD I SPLIT MY CHILD'S GUARDIANSHIP APPOINTMENT?!
It will always depend. If you've already appointed a great person to be your child's guardian, then don't freak out. Typically, one person can manage both aspects of the guardianship. However, consider bifurcating the guardianship appointment if some of the following areas are relevant to your circumstances.
Great with My Child, but Bad with Money Management. Nobody ever wants to admit this publicly; but its a fact of life. We all have that favorite Uncle Ray that all the kids love but damn if he cant pay a bill on time. This wouldn't necessarily make Uncle Ray a bad guardian, but you know your child's need's best. If someone needs to serve as Guardian over your child's estate while Uncle Ray raises him, then guess what, that's more than okay too.
Size and Nature of the Estate. If the size of the estate that your child will be inheriting is relatively large (or) complicated; then consider a separate Guardian of their Estate (if) your guardian appointment doesn't have experience managing a similar estate. Large and/or complicated inheritance can be daunting to someone who isn't used to dealing with lots of moving parts.
Example... Aunt Lola (the cool aunt) lives in an apartment with her dog. She has a couple of bank accounts and a car that's paid off. Your son on the other hand will inherit the (1) house, (2) all of the stuff inside, (3) a life insurance policy, (4) bank accounts, and (5) your 1976 Corvette Stingray. Does Aunt Lola have the kind of experience and knowledge/resources to successfully manage (1) any responsibilities to upkeep the house; (2) store the personal property; (3) do an annual accounting on the finances of the estate; and MOST IMPORTANTLY (5) maintain the corvette!?
Children with Special Needs. I'll write a future blog on this; but for now, consider a child with Special Needs. They often require unique services that involve (1) applications; (2) annual eligibility renewals; (3) accounting knowledge; and/or (4) other financial management capabilities.
Location. In some situations, the best possible 'guardian of the person' may live in a different city from the child's physical estate-assets (house, personal property, 1976 corvette etc). All of these things might be better managed by someone physically closer to those assets (if the bulk of the estate are physical assets); while your child is being raised with Cool Aunt Lola.
DO I HAVE TO GO FIND AN ACCOUNTANT TO BE THE GUARDIAN OF MY CHILD'S ESTATE?!
No not necessarily. The 'nature' of the estate is the most crucial component of the question. The best candidate should be the person with the most readily available skills/experience/knowledge to manage the financial and operational aspects of your child's estate. This person doesn't have to be an accountant (or otherwise). Its simply the best person(that you know and would be willing) to manage the job.
LASTLY, LETS APPLY THIS TO OUR COMMUNITIES AS A WHOLE!
Both African-American and Muslim communities are engaged in tough times right now. African-American and Muslim lawyers are struggling to keep our communities in tact; often in constitutional, criminal, and family law cases. However, we must never forget that our communities only survive upon the lifeblood of our hard-work, our wealth, and the legacy of inheritance (be it financial or otherwise). In such tough times, where money and resources are dwindling; family members look to each other for support and well-being. We have long histories of village campfire traditions; taking upon the responsibilities of our loved-ones with (or) without the means and(or) know-how. Why? Because we are the beautiful collectives.
Still, we can do better, be smarter, and plan more wisely. The law has provided everyone in Texas the ability to contextualize the guardianship of their children into unique and independent hemispheres of influence. We must grow, self-educate, and evolve with the times; using all considerations afforded to us to ensure the best outcomes for our children and the legacy we leave to the future.
In the end, Cool Aunt Lola can still be the guardian of your children, both their person and their estate. But at least now you know she doesn't have to be, if its not the best for your child.