Becoming a parent means stepping into a world of new responsibilities, from late-night feedings to planning for your child’s education. Yet one of the most important responsibilities often goes overlooked: creating a will. Without a will, parents risk leaving critical decisions about guardianship and finances in the hands of a Texas probate court, rather than making those choices themselves. A will gives you the ability to protect your children’s future, ensure their care is entrusted to the right people, and safeguard the assets you worked hard to provide.
If you are a parent in Texas, it is essential to speak with an experienced San Antonio wills lawyer who can guide you through the process. The Family Matters Law Firm PLLC helps families gain peace of mind by creating wills that reflect their values and protect their children. Call (210) 997-2914 today to schedule a consultation and take the first step toward securing your family’s future.
The Most Important Question: Who Will Raise Your Children?
Of all the anxieties that keep parents awake at night, one question looms largest: If something happened to me and my partner, who would raise our children? In Texas, a will is a legal document that gives you the power to answer that question with certainty. Naming a guardian makes your voice heard, ensuring that the people you trust most are the ones entrusted with your greatest legacy: your children.
Your Choice vs. The Court’s Choice
Without a will, you leave the most important decision of your child’s life in the hands of a judge. If both parents pass away without naming a guardian, a Texas probate court will decide who raises your children. Even with the best intentions, a judge does not know your family, your values, or the unique personality and needs of your child.
The legal process itself can be emotionally draining for loved ones. It requires formal applications, court hearings, and the involvement of a guardian ad litem. This process can be lengthy, expensive (with costs paid from your estate), and deeply divisive. Family members who believe they are the best choice may file competing applications, igniting painful disputes. Instead of unity and stability, your children could face conflict and uncertainty at a time when they need security most.
The Risk of Unintended Consequences
Texas law has a statutory order of preference for guardianships. While this may sound straightforward, it often does not align with what parents would truly want. Judges apply the best interest of the child standard, but that is a broad and subjective test. A court can assess financial stability and home environment, but it cannot weigh the subtler, more personal considerations you would have thought through:
- Which relative shares your values on education, faith, and discipline?
- Who has the patience, energy, and parenting style best suited for your child?
- Who lives in a community that would help your child maintain friendships and familiar routines?
Without your direction, the wrong person could be chosen, or worse, if no suitable family member is available, your child could be placed in the foster care system. For most parents, that is an unthinkable possibility, yet it is one that a thoughtfully prepared will can completely prevent.
Guardian of the Person vs. Trustee of the Estate
A will in Texas also allows for more nuanced planning. Parents often assume that the same person who raises their children must also manage their money, but this is not true. You can split responsibilities into two roles:
- Guardian of the Person: The caregiver you select to raise your child is responsible for daily life, guidance, and emotional support.
- Trustee of the Estate: The individual or institution you appoint to manage your child’s inheritance, ensuring assets are protected and distributed responsibly.
This flexibility recognizes that the person who excels at providing love and stability may not be the same person best equipped to manage finances. For instance, a nurturing sibling may be the ideal caregiver, while a financially savvy relative or even a professional trustee could manage your child’s college fund and future expenses. By making these distinctions, you create a support system that safeguards every aspect of your child’s future.
Protecting Your Child’s Inheritance with a Will
Many parents assume that wills and estate planning are only for the wealthy. The truth is, if you have young children, a will is one of the most important financial tools you can have. It acts as a shield, protecting your child’s inheritance from unnecessary court involvement, high administrative costs, and even the risk of them receiving too much money too soon.
What Happens Without a Plan: Court Guardianship of the Estate
If a child inherits property without legal safeguards in place, Texas law requires the court to create a guardianship of the estate. This means a judge selects someone to manage the money until the child turns 18. Although this process is meant to be protective, it often creates more problems than it solves.
The guardian must typically post a bond, submit detailed annual reports, and get court approval for many expenses. Every step costs money, and those costs are taken directly out of your child’s inheritance. What you hoped would be used for their education or daily needs may instead be eaten away by legal and administrative fees.
The Smarter Option: Creating a Testamentary Trust
A far better solution is to include a testamentary trust in your will. This type of trust takes effect after your death and allows you to name a trustee, someone you trust to manage the funds for your child. A testamentary trust provides three major advantages:
- Keeps the Court Out: The trustee follows the instructions in your will rather than being bound by court rules. This avoids expensive oversight and ensures more of the money is used for your child.
- Supports Your Child as They Grow: You can give the trustee flexibility to use the funds for your child’s health, education, and general needs.
- Prevents the 18-Year-Old Millionaire Problem: Without a trust, all funds are handed to your child in one lump sum at age 18. With a trust, you can delay distributions until a more mature age or spread them out over time.
For smaller estates, parents may also consider a custodial account under the Texas Uniform Transfers to Minors Act (UTMA). This allows a custodian to manage the money until the child turns 21. While this option is simpler, it offers less control than a trust. For most families, a testamentary trust is the stronger and more protective choice.
Avoiding the Trap of Texas Intestacy
When someone dies without a valid will in Texas, the law treats them as having died intestate. This does not mean the state seizes all property. That only occurs in the rare event that no living relatives can be located. Instead, Texas imposes its own rigid system for dividing property, known as intestate succession. These rules were written decades ago, based on traditional family structures, and often create serious problems for today’s blended and modern families.
To understand how intestacy works, you must first know the difference between community property and separate property. In Texas, community property is everything acquired during a marriage, while separate property is anything owned before marriage or received during marriage as a gift or inheritance.
How Intestacy Can Hurt Blended Families
The risks of intestacy become most obvious in blended families. Consider this common scenario:
Sarah and Tom are married. Sarah has a daughter, Emily, from a prior relationship. Tom has a son, Ben, from his own prior relationship. Together, they have a young daughter, Chloe. They share a home and a savings account, both acquired during their marriage and classified as community property.
If Sarah passes away without a will, many assume Tom will inherit everything. The truth is very different. Under Texas law, Sarah’s one-half of the community property does not go to her husband. Instead, her share passes directly to her biological children, Emily and Chloe.
The consequences are devastating. Tom suddenly co-owns the family home and joint savings account with Emily, his stepdaughter, and Chloe, his minor child. Without a will, Tom may face complications in managing or selling the family home or accessing the savings account, as he must account for Emily’s legal share. What should be a time of healing and stability instead becomes a financial and emotional crisis. All of it could have been avoided with a will.
Why Creating Your Own Plan Matters
The difference between relying on Texas law and creating your own plan is stark.
- Married with children from the same marriage: With a will, you can ensure everything goes to your spouse first and then to your children in a trust. Without a will, your spouse receives all community property, but only one-third of your separate property. The rest goes directly to your children.
- Married with children from a previous relationship: With a will, you can protect your spouse by giving them the right to use family assets during their lifetime, while also ensuring that your children eventually inherit. Without a will, your half of the community property goes directly to your children, bypassing your spouse entirely and often forcing the sale of shared property.
- Unmarried with children: With a will, you can name a guardian, establish a trust, and decide how assets are used until your children are mature. Without a will, the assets are divided equally among your children, but locked in a costly, court-supervised guardianship until they turn 18. At that age, they receive everything in a single lump sum, regardless of whether they are ready to handle it.
Texas law provides a one-size-fits-all plan, but it rarely fits the unique circumstances of families. A will allows you to design a plan that truly reflects your values, your relationships, and the financial stability you want for your children. Without it, you leave those decisions to outdated legal formulas and a probate court judge.
| Family Situation | With a Will | Without a Will (Texas Law) |
|---|---|---|
| Married with children from the same marriage | You can leave everything to your spouse first, then to children through a trust. | Spouse receives all community property, but only one-third of separate property. The rest goes directly to the children. |
| Married with children from a previous relationship | You can protect your spouse by giving them lifetime use of family assets while ensuring children inherit later. | Your half of the community property goes directly to your children, bypassing your spouse and often forcing the sale of shared assets. |
| Unmarried with children | You can name a guardian, set up a trust, and control how and when assets are used. | Assets are divided equally among children but placed in a court-supervised guardianship until age 18, then distributed in a lump sum. |
San Antonio Wills Lawyer Linda Leeser
Linda Leeser
Linda Leeser, founder of Family Matters Law Firm PLLC, brings both personal and professional dedication to her clients. She earned her Juris Doctor from St. Mary’s School of Law, where she gained valuable hands-on experience at both the civil and criminal clinics. Since becoming licensed, Linda has built a reputation as a compassionate yet determined advocate for clients across a wide range of legal areas, including wills, family law, criminal defense, and general civil litigation.
As a member of the Texas Bar College and the San Antonio Bar Association, Linda is deeply committed to advancing her legal knowledge and serving her community. She is also a graduate of Gerry Spence’s Trial Lawyer College, further enhancing her skills in courtroom advocacy. Licensed to practice in Texas and the U.S. District Court for the Western District of Texas, Linda combines her diverse legal background with a client-focused approach.
Linda Leeser, founder of Family Matters Law Firm PLLC, brings both personal and professional dedication to her clients. She earned her Juris Doctor from St. Mary’s School of Law, where she gained valuable hands-on experience at both the civil and criminal clinics. Since becoming licensed, Linda has built a reputation as a compassionate yet determined advocate for clients across a wide range of legal areas, including wills, family law, criminal defense, and general civil litigation.
As a member of the Texas Bar College and the San Antonio Bar Association, Linda is deeply committed to advancing her legal knowledge and serving her community. She is also a graduate of Gerry Spence’s Trial Lawyer College, further enhancing her skills in courtroom advocacy. Licensed to practice in Texas and the U.S. District Court for the Western District of Texas, Linda combines her diverse legal background with a client-focused approach.
Building a Plan That Brings Peace
Creating a will is one of the most meaningful steps a parent can take. Instead of living with anxiety about the unknown, you can move forward with confidence knowing that your wishes will be carried out and your family will be spared the confusion and conflict that so often follow an unexpected loss.
- A will gives you the legal authority to name a guardian for your children.
- A will protects your child’s inheritance through a testamentary trust, keeping it safe from unnecessary court involvement and youthful mistakes.
- A will allows you to replace the state’s rigid intestacy laws with your own thoughtful plan that reflects your family’s needs.
A will is not simply a list of who gets what. It is a guidebook for your loved ones at a time when they will be struggling with grief and uncertainty. It answers difficult questions in advance, preventing arguments, misunderstandings, and painful legal disputes. In this way, a will does more than divide property. It preserves harmony when your family needs it most.
Many parents put off estate planning because they assume the process is complicated and expensive. In reality, Texas has one of the most straightforward probate systems in the country. With a valid will, the process can be simple and efficient. Most attorney-drafted wills include what is known as a self-proving affidavit, a notarized statement that allows the will to be admitted to probate smoothly, often without the need for a formal court hearing.
Ultimately, a will is a lasting gift to your family. While its primary role is to protect your children, it also eases the burden on your surviving spouse, your chosen guardian, and your extended relatives. Instead of struggling with uncertainty, they are given clear instructions. This allows them to focus on what matters most: caring for one another and ensuring your children feel loved, supported, and secure.
Protect What Matters Most with Family Matters Law Firm
Every parent hopes their children will always be safe, secure, and cared for. Creating a will is one of the most powerful ways to make sure that happens, no matter what the future brings. From choosing a guardian to protecting an inheritance, a will provides clarity, stability, and peace of mind for both you and your family.
Do not wait until it is too late to put your wishes in writing. If you are ready to take this important step, speak with a trusted San Antonio wills lawyer who understands the unique needs of Texas families. The Family Matters Law Firm PLLC is here to help you create a plan that protects what matters most. Call (210) 997-2914 today to schedule your consultation and give your family the gift of certainty and security.
