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adarkfox
03-26-2011, 12:06 AM
I hate it when books kind of gloss over the realistic repercussions of life-changing events... so I need some help figuring out what the realistic repercussions of this life-changing event will be.

DAUGHTER- parents divorce at age 10. Mother gives up her parental rights, Father has sole custody.

DAUGHTER- age 16, Father dies. Leaves custody to daughter's 26 yo older sister.

Okay, so my big questions are: I know daughter will get SS benefits until she is 18, and all of father's assets are willed to be split between the daughters. If the daughters agree on what money goes where/what to do with the property is it necessary to go to court or a lawyer to decide those things in writing? Or since she is 16 is Daughter SOL until she's 18?

Does the Mother have any grounds to try for custody of Daughter or is Mother screwed since she gave up her rights 6 years ago?

Thanks for any input... I just don't want people to be reading the MS and saying "that wouldn't happen!" and throw it against the wall :)

WriteKnight
03-26-2011, 01:29 AM
Probate laws vary from state to state. Much will depend on where the story takes place, and what the value of the estate was. (Assuming he left a will).

Ol' Fashioned Girl
03-26-2011, 01:37 AM
If father was wise enough to establish a trust, a lot of legal wrangling can be avoided.

Lil
03-26-2011, 01:39 AM
Is there a reason why someone has to tell Mother that Father is dead?

adarkfox
03-26-2011, 04:05 AM
Thanks for the input so far guys! I'm not going to go into every boring detail (I doubt the reader would care that much anyway!) but I want the vague framework to be proper.

Older Sister has interactions with Mother - that's why I was wondering about the grounds for a challenge for custody.

A little more info here: Father who died is farmer, owns house and property, some equipment and livestock. I assume whatever isn't paid for the bank (tractors, et cetera) takes back, leaving land, house, livestock and some equipment. Since he has willed his two daughters in 50/50 on everything, the daughters want to sell all the livestock/equipment and split the profits, then rent/CRP the cropland. Is that something that would be feasible?

I am not wise in the ways of trusts - is that something only for $$$ or would property be included too? Is that something that Daughter would get at 16 or would she have to wait until 18? Any input or an explanation of Trust Funds for N00bs would be greatly appreciated!!

PinkAmy
03-26-2011, 02:28 PM
Children aren't considered property--they can't be "given" in a will. She wouldn't necessarily go to the sister just because that's what the father wanted. The sister would have to be vetted through social services and as long as she can provide for the child and no others are contesting the adoption, then it would go through. The mother does have grounds to sue for custody of the child. A lot would depend on why she gave up her parental rights. With the right lawyer, as long as the mother is fit, she would probably get preference over the sister.
Depending on who is executor of the will, the assets can be split easily or made more difficult. If the older sister is the executor, and she and her younger sister are the only ones named in the will and splitting the assets, it will be relatively easy. If there were other children who the father excluded from the will or if he was uber rich- relatives could come out of the woodwork to contest the will and then the courts would get involved.
The executor should have legal counsel. People inheriting over a certain amount of money need to pay taxes on the value of their inheritance etc.

jclarkdawe
03-26-2011, 05:36 PM
The scenario you're describing in incredibly complicated, and I'm not sure how much research you really want to do on this.


I hate it when books kind of gloss over the realistic repercussions of life-changing events... so I need some help figuring out what the realistic repercussions of this life-changing event will be. Because they're complicated and usually unnecessary to the story is why they're glossed over.

DAUGHTER- parents divorce at age 10. Mother gives up her parental rights, Father has sole custody. Here I'm wondering if you really understand the terms that you are using. Most courts are not going to allow a non-custodial parent to terminate their parental rights, as that also terminates the child support obligation. Nearly always, the only way a court will allow one parent to terminate parental rights is if another parent is going to take that parent's place.

In other words, and ignoring the implications of gay marriages in Iowa which impact this even further, if the mother and father agree that the mother should terminate her parental rights, it would because the child(ren) are getting an adoptive mother. In other words, the father's girlfriend/wife would become the child(ren)'s mother.

Giving up custody is something entirely different from terminating parental rights, and even a permanent relinguishment of custody can be revisited if circumstances change.

DAUGHTER- age 16, Father dies. Leaves custody to daughter's 26 yo older sister. In that case, either the natural mother who gave up custody becomes the custodial parent or the adoptive mother who gained motherhood when the natural mother's rights were terminated would become the custodial parent.

Okay, so my big questions are: I know daughter will get SS benefits until she is 18, and all of father's assets are willed to be split between the daughters. If the daughters agree on what money goes where/what to do with the property is it necessary to go to court or a lawyer to decide those things in writing? Or since she is 16 is Daughter SOL until she's 18? Any significant sum of money going to a minor requires that the probate court set up a trust for the administering of that money. Custody may or may not be visited by the court.

Does the Mother have any grounds to try for custody of Daughter or is Mother screwed since she gave up her rights 6 years ago? Depends upon whether the natural mother gave up custody or terminated her parental rights.

Thanks for any input... I just don't want people to be reading the MS and saying "that wouldn't happen!" and throw it against the wall :)


Thanks for the input so far guys! I'm not going to go into every boring detail (I doubt the reader would care that much anyway!) but I want the vague framework to be proper.

Older Sister has interactions with Mother - that's why I was wondering about the grounds for a challenge for custody. It doesn't matter. Go back to the discussion between custody and termination.

A little more info here: Father who died is farmer, owns house and property, some equipment and livestock. I assume whatever isn't paid for the bank (tractors, et cetera) takes back, leaving land, house, livestock and some equipment. Since he has willed his two daughters in 50/50 on everything, the daughters want to sell all the livestock/equipment and split the profits, then rent/CRP the cropland. Is that something that would be feasible? This is incredibly complicated and needs a specialist. And even dealing with family farms varies from area to area. The approach in Iowa is markedly different than the approach in New Hampshire. And estate taxes play a big part here. But I'm sure the Iowa farm bureau or grange does presentations on doing this. I'd go to one of those to get some idea.

I am not wise in the ways of trusts - is that something only for $$$ or would property be included too? Trusts are for both money and property, including real and personal. Can be as simple as a couple of pages to over a hundred pages. Trusts can be set up to start upon the death of the testator or during the testator's lifetime. Trusts can also be set up by courts.

Is that something that Daughter would get at 16 or would she have to wait until 18? Until she reaches 18, the money would be held in the trust. Depending upon the circumstances, either the money would be used for her support or would be saved until she reached her majority. If the father set up the trust, it is probable that the age when the trust would terminate would be older than 18. Normally attorneys think about age 25 and adjust from there. In the case of a family trust for a farm, it could be considerably longer, depending upon the goals of the testator.

Any input or an explanation of Trust Funds for N00bs would be greatly appreciated!! Look for information on estate planning. Family farm estate planning is not a big area of law and does require some special knowledge.

Best of luck,

Jim Clark-Dawe

Kitti
03-26-2011, 06:42 PM
DAUGHTER- parents divorce at age 10. Mother gives up her parental rights, Father has sole custody.

Here I'm wondering if you really understand the terms that you are using. Most courts are not going to allow a non-custodial parent to terminate their parental rights, as that also terminates the child support obligation. Nearly always, the only way a court will allow one parent to terminate parental rights is if another parent is going to take that parent's place.

I've seen the termination of the parental rights of the non-custodial parent (wow that's a mouthful) come up in a case where there were issues with child/spousal abuse, but the woman decided she wanted the child-support money so she didn't seek termination.

jclarkdawe
03-26-2011, 07:13 PM
DAUGHTER- parents divorce at age 10. Mother gives up her parental rights, Father has sole custody.

Here I'm wondering if you really understand the terms that you are using. Most courts are not going to allow a non-custodial parent to terminate their parental rights, as that also terminates the child support obligation. Nearly always, the only way a court will allow one parent to terminate parental rights is if another parent is going to take that parent's place. I've seen the termination of the parental rights of the non-custodial parent (wow that's a mouthful) come up in a case where there were issues with child/spousal abuse, but the woman decided she wanted the child-support money so she didn't seek termination.

This would be the exception to the rule where it comes up. But if there were issues of child abuse significant enough that termination of parental rights were to happen, then the rest of the poster's questions become meaningless, so I decided to ignore it.

Judges tend to figure that if you want to play, you can pay. And I agree with them. There are a lot of people paying child support that will never see their children.

Best of luck,

Jim Clark-Dawe

adarkfox
03-27-2011, 06:40 AM
Quote:
Originally Posted by adarkfox http://www.absolutewrite.com/forums/images/buttons/viewpost.gif (http://www.absolutewrite.com/forums/showthread.php?p=5964032#post5964032)
I hate it when books kind of gloss over the realistic repercussions of life-changing events... so I need some help figuring out what the realistic repercussions of this life-changing event will be. Because they're complicated and usually unnecessary to the story is why they're glossed over.

I am not putting all this in the book, I just want to be sure my glossing over is correct... I hate it when (example) character's parents both die and they are raised by aunt/uncle/g'parent and say how there was no money for the kids... even if parents didn't have life insurance there is SS, wrongful death, and a slew of other things that go into play. Anyway, end rant!

Thanks again for all the info!

Sister is well-off and would have no problem vetting through social services (thanks for the info Pink! I didn't even think that there would have to be an actual adoption-now I won't sound like a moron :D. And thanks Jim for sorting out the termination / custody thing... now I can say relinquishing custody by Mother.

You guys are great, and I feel guilty but I'm going to try and pick your brains a little more.... I think this is the last question then I have enough to sort it out with out saying something stupid in my MS....

Mother obviously doesn't give a crap, is happy living her own life. If Daughter's inheritance is tied up until 18-25 or whatever in trust, would there be any financial benefit to Mother gaining custody of Daughter? Would it be a financial benefit that would be greater than the fees and cost associated with obtaining it?

jclarkdawe
03-27-2011, 05:22 PM
Originally Posted by adarkfox http://www.absolutewrite.com/forums/images/buttons/viewpost.gif (http://www.absolutewrite.com/forums/showthread.php?p=5964032#post5964032)
I hate it when books kind of gloss over the realistic repercussions of life-changing events... so I need some help figuring out what the realistic repercussions of this life-changing event will be. Because they're complicated and usually unnecessary to the story is why they're glossed over. I am not putting all this in the book, I just want to be sure my glossing over is correct... I hate it when (example) character's parents both die and they are raised by aunt/uncle/g'parent and say how there was no money for the kids... even if parents didn't have life insurance there is SS, wrongful death, and a slew of other things that go into play. Anyway, end rant!

You know and I know about social security, but a significant number of people don't. It doesn't automatically kick in, as SS has to be notified. And there's a large chunk of kids who are eligible for it that aren't collecting it. Wrongful death would probably happen in less then half the death of parents. So in many cases, yes the author is correct when saying there's no money for the kids.

Remember that many people know how to navigate the government. But a lot don't. Knowing the right answer doesn't mean everybody else does. And since you can assume that a character's knowledge is no greater than the author, you can probably figure the author, if placed in a similar situation as their characters, would make the same mistakes.

Thanks again for all the info! You're welcome.

Sister is well-off and would have no problem vetting through social services (thanks for the info Pink! I didn't even think that there would have to be an actual adoption-now I won't sound like a moron :D. And thanks Jim for sorting out the termination / custody thing... now I can say relinquishing custody by Mother. Lawyers use specific words for a reason. Problem is most people think we're being picky. We're not. We're trying to convey very specific meanings with vastly different results. You're not the first person to have this confusion.

You guys are great, and I feel guilty but I'm going to try and pick your brains a little more.... I think this is the last question then I have enough to sort it out with out saying something stupid in my MS....

Mother obviously doesn't give a crap, is happy living her own life. If Daughter's inheritance is tied up until 18-25 or whatever in trust, would there be any financial benefit to Mother gaining custody of Daughter? Would it be a financial benefit that would be greater than the fees and cost associated with obtaining it?

Two scenarios here. The first is if the father set up a will/trust. In that case, the father would choose a trustee, and presumably would not choose the mother. The second is that the court sets up a trust. The court could choose the mother, but it would require an annual report to the court explaining all of the expenses. Fraud is doable, but difficult.

You didn't think to ask the main question. Mom would have custody of the daughter and that's not the result you want is my impression. So here's how you get the result you want. If dad knows he's dying, he could start setting this up before he died, and could possibly have it completely set up.

I'm going to assume that dad has an attorney who set up a will/trust for dad and also represented dad in the divorce. As a result, he/she knows the family history. Providing mom is agreeable, a guardianship is set up with the older daughter being named guardian of the younger. Ideally you do this through the probate court, but you don't have to.

Guardianships have become very popular as school districts refuse to accept children in their district that they don't absolutely have to. Family services are very rarely involved in guardianships that they don't start.

Best of luck,

Jim Clark-Dawe

adarkfox
03-27-2011, 06:26 PM
Thanks Jim for the Guardianship cookie! I feel armed enough to tackle this mess now and know that @least in my head it somewhat makes reasonable sense.

Thank you thank you thank you.