One of the realities of life that we all must face is that at some point in time we will all pass away. That our lives are finite and cannot go on forever is an undeniable truth but is also understandably not something that we relish having to talk about. Discussing death is probably the last thing any of us want to have to do each day. However, when it comes to discussing wheels, estates, and other probate matters it is essential to be able to acknowledge that death is a reality for each of us and how it is better to be prepared for this eventuality than to have it catch us and our families by surprise.
When we discuss any subject related to our mortality ultimately, we do so not for our benefit. Without a doubt, when it comes to issues impacting our lives that are related to death, these are not things that will impact us directly. However, you will likely leave behind a spouse, children, family, or at least other interests that could stand to benefit from your planning ahead when it comes to having a will and an estate plan. What I am telling you is if you do not want to plan for your passing for yourself then you should do it for your family and those who are most important to you. These folks could stand to gain a great deal by the war putting forth some minimal thought into how you want to structure in a state plan.
For most people, structuring an estate plan begins and ends with a simple will. This does not have to be something complicated. You may have been led to believe that having a will is difficult to accomplish or expensive to create. I am here to tell you that not only is this not true but relying upon this assumption can be a convenient excuse when it comes to not moving forward and performing your basic duties to prepare yourself and your family for the realities that death presents us with.
Additionally, it pays to consider why you may not have already created the will for yourself. For instance, are you concerned that by drafting a will you are increasing the likelihood of your death? This may sound funny to you at first but believe it or not, I have encountered people who feel like once they bring up the subject of a will, they are inviting something bad to happen in their lives. I can tell you that drafting a will does nothing to increase the likelihood of your passing. Sometimes all you need is to hear this to take it all in and feel more comfortable moving forward. You do not need to fear anything regarding death just because you draft a will. The less prepared you are for your passing the more concern and fear you are likely to have.
Do only rich people have wills?
Another hold-up that I have encountered from people that have not yet taken the opportunity to have a wheel drafted is that some of us believed that only wealthy people have wheels. In your personal life, the only contact you may have had with a will is regarding watching television shows or movies where wheels are featured. You probably know what I am talking about. The rich patriarch of the family passes away and the scene immediately cuts to the inside of the lawyer’s office. The lawyer then reads out the contents of the will to the surprise of the man's family. It just so happens that the old man left his children out of the will in favor of his new and much younger spouse. While situations like this may be entertaining, they are not reality. Every person who is over the age of 18 should have a will. In other words, if you are a responsible adult then you will have a will.
The difference is that what is in your will probably be different than what is in your neighbor's will. While it is true that everyone should have a will your will may not be as complicated as another person. At the very least, your will should name an executor. An executor is a person who will execute on the terms of your will. When we asked in the opening title to today's blog post who will carry out your wishes in your place, it is the executor of your will who will fulfill this obligation. The executor is legally bound to follow through with your wishes as laid out in the will.
The failure of the executor to follow through with your terms exactly as you laid out not only is a moral failing on that person's part but also violates the law. The reason being is that you will also name beneficiaries in your will. Beneficiaries are our people, entities, or other recipients who stand to receive property of yours after your passing. The law allows for you two divide properties essentially however you would like after your passing. As such, you can name certain people to receive certain properties under certain conditions within the will. How you structure your will and create beneficiaries is completely up to you. However, to be able to exercise this degree of control over the circumstances means that you must first take the initiative and create a will.
What happens if you don't have a will?
The flip side of this conversation would be what happens if you pass away without a will? Based on the information I just provided you in the previous paragraph you probably have the beginnings of an understanding of how property can be dispersed and distributed upon your death with a will. You are given a great deal of autonomy when it comes to determining where your property goes after your death when you have a will. However, now that you know this you should have another question popped into your mind. Namely: what happens if you do not have a will?
If you pass away without a will then the state laws on intestate distribution would come into play. Dying intestate simply means that you die without a will. In that case, the state of Texas would be able to determine in large part how your property will be divided. Typically, this means that your estate would need to go through probate. Probate is a type of legal proceeding where a probate judge would at long with the administrator appointed to your state, bill about the business of distributing property and paying creditors if he passed away without a will. Frequently it would be your spouse, your child, or another family member who would come forward to the court to begin the process of administering your estate.
When it comes to not having a will, one of the excuses or reasons that I will hear from people is that the Texas laws on intestate distribution conformed with right you would have done anyway. Does this mean that if a probate court judge were to divide up your property in a fashion that is agreeable to you while I make the effort to have a will in the first place? Isn't it just a lot of trouble and expense to do something that a probate court judge can do on their own? The trouble with holding this position is like holding a position that in a family law case a family court judge will simply see the facts as they are and make determinations for your family in a way that is agreeable to you.
What I am trying to say is that there is no way to accurately predict what a probate court judge will do when it comes to dividing up your property. For many families and circumstances, it is fairly obvious how property should be distributed according to the Texas estates code. However, when you have multiple people in your family intervening in, you're state administration there is no telling what a judge may decide. All the while, you have family members who could stand to benefit a great deal from receiving property through your will that must now wait for months or even years for this to occur.
Just like we talked about at the outset of today's blog post, you are not creating a will for yourself. While having a will does provide peace of mind to a certain extent you are creating the will to benefit the lives of your family members. You and I have no idea about the circumstances of our families and what they will look like at the time of our passing. While we may be confident that our families will be secured no matter what happens with our estate, we cannot be sure of this. Having a will positions your family to be able to act on your intentions readily so that they can set aside the administrative and financial issues of your death and focus on family and togetherness. For someone with a close family like mine, this is all the motivation I would need to have a will if I did not already have one.
What to do if you do not want your family to inherit anything from you?
Another consideration that I hear frequently from people when it comes to reasons why not to have a will is that you may not want your family to inherit property from you. The thought goes that you have worked hard but have family that either does not see eye to eye with you on various subjects or is outright hostile to you insert in regards. In that case, how can you proceed when you have a family that has views which do not align with your own? Why should you create a will to allow them to inherit property from you if you disagree with them on many different subjects?
The first thing I would caution you on is to not allow petty grievances to get in the way of doing what is right and in the best interest of your family. While I do not know your circumstances at all I can tell you that there is a difference between petty disagreements with family members and out and out philosophical and moral differences. You should consider what type of disagreements you have with your family before making decisions about whether leaving someone out of a will serves your family well. A lot of that discussion falls in line with being able to discern what is a petty disagreement and what is a philosophical and moral disagreement.
For example, I would probably have a hard time leaving money to a person in my family who has a drug or alcohol addiction. Again, we do not know exactly how the lives of the people in our family will change from the time we create our will to our passing. However, it is not necessarily a wise thing to do to leave money to an addict. Reason being that you're leaving money to an addict can directly lead to a worsening of their addiction and possibly their death. This may sound dramatic, but you do not want part of your legacy to be that you contributed to a bad outcome for a family member.
However, even in a situation where you have concerns about the lifestyle choices of your family members, there are ways to protect him or her while leaving him or her in your will. For example, you could insert language into your will that allows for your loved one to inherit property from you at your passing so long as he or she meets certain guidelines or qualifications. For example, you could mandate that your loved one maintain so many years of sobriety or be enrolled in Alcoholics Anonymous before having property be distributed to him or her upon your passing. To some, this may seem rather controlling. However, I would argue that with your money and your legacy you have every right to have direct control over how your property is divided and distributed. In many ways, you have no control over how the property is divided once you were gone and are not able to exercise direct control over it. Therefore, you should take advantage of whatever opportunities the law provides you with to both create a will and to do what is best for your family.
Creating a will also allow you the opportunity to provide a path forward for your children even if they are minors. For example, you and your spouse may choose to create mirror image wheels wear, in the event both of you pass away at the same time, either one of you may be able to have a trust created that would allow for your children to be cared for out of the property in your estate until they reach adulthood. For many people, this involves having life insurance that would have your children as beneficiaries or secondary beneficiaries if you and your spouse passed away at the same time.
A testamentary trust is a frequently used vehicle in the estate planning world for people who have children under the age of 18. A testamentary trust could be set up within the will that would name a trustee who would oversee how money is distributed upon your passing. You should consider asking someone if they are comfortable with you naming them as trustee before having the will signed in witnessed. Or financial institutions like your banker credit union may be able to step in and offer trustee services. Either way, having the proceeds of a life insurance policy or other financial investment goes into a trust for your children would not be uncommon.
From there, the money could be distributed for certain events such as purchasing a car when your children turn 16, paying for a college education, or even a wedding. Once your children reach a specific age the remaining funds in the account could be released to them. While it is disheartening to think about passing away while your children are young creating a will can be the most effective way to help your children financially if you are no longer with them. It is yet another example of how creating a will is not necessarily done for your benefit directly but for those in your family. I can think of no better example of this than to provide for your minor children if tragedy happens.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed probate and estate planning attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of estate planning and probate law as well as how your family circumstances may be impacted by the drafting of a will or the placing of an estate into probate.
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