This column first appeared in the San Antonio Express-News on May 11, 2018.
Dear Mr. Premack: I want to help my family. We have never had anyone divorce in our family. Then my son’s wife divorced my son. She kept their two young children. I get along with the grandchildren just fine. It’s bad because the ex-daughter in law is causing trouble. It gets worse because my son just died. And worse, he had no Will. There is a small estate. I do see from this mess that my wife and I should get our own Wills in order, but that will be after we know: what can or should my wife and I do to help our grandchildren inherit their estate from my deceased son? – GG
Divorce can be – almost always is – an emotional and financial mess. When you combine divorce with angst and anger, things just get worse. And when you top that with a sudden death, the only thing that could make it worse is if there is no Will or other estate plan.
Your son, you say, had a small estate. He died intestate. Consequently, the Texas laws of descent and distribution apply. Since he is no longer married, the first in line to inherit his assets are his children. The problem is that they are minors, and cannot own any assets directly without legal adult supervision.
If your son had made a Will, he could have set up a Trust for the children’s inheritance. There would be a capable adult selected by him to manage the assets, to use them wisely for the benefit of the children, and to eventually distribute the assets when they reach a suitable adult age. Or, instead of a Trust he could have at least invoked the Uniform Transfers to Minors Act, naming a custodian, other than his ex-wife, to control the assets until the children turn 21.
Instead, Texas law recognizes the children as his intestate heirs who will be represented by their natural guardian – you got it, their mother. The one who divorced him, and who is causing trouble. Fortunately, as the ex-wife she is not entitled to inherit directly, nor is she highly prioritized to become the court appointed Administrator of his estate. Instead, his “next of kin” – which could be a sibling or you as his parent – has highest priority. In fact, Texas law allows the court to rule that the ex-wife would be unsuitable as Administrator.
Assume that you, as his surviving parent, become court appointed Administrator. After all the legal process and expense, the Court will order that any assets should be set aside for the children as heirs. The Administrator may have to petition the Court for the creation of a Management Trust. If the Court finds that a Trust would be in the best interests of the children (as would be expected) then it will order that a Trust be created, appoint a Trustee, and set the terms under which the children may benefit. All of this will cost many times what it would have cost for your son to make a Will, and could consume a large part of his small estate.
So, there is a way for you to help your family. But it will be slow and expensive to fix the problems left behind by your son because he never made a Will. Once you get those legal repairs underway, you would be wise do your family a further service and make sure that your own estate plans are up-to-date to avoid these complications someday when you die.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.Premack.com.