Can you think of any things you do to protect your family? This past year has provided us ample opportunity to understand why it is so important to have protections in place for various areas of our lives. The most obvious sort of protection is that which is related to the pandemic. We have all focused heavily on our health and that of our family during the past year. When a new virus is introduced into our world, understandably, this would be the case. However, as the pandemic wanes and the effect of the vaccines comes into focus, we can and should shift our focus to an extent away from this concern and onto others that we may have been neglecting.
One of those areas which we may have neglected but is nonetheless very important is planning for your financial future. Many of us invest in retirement plans that help us ensure that there will be some money set aside for us to live on in our golden years. There are many ways to invest for retirement: workplace savings plans, individual retirement accounts, pension plans, and even investing in real estate as a way to diversify yourself from a financial perspective. The most important thing, in my opinion, is to act intentionally in whatever you want to do in planning for your future.
Not to be too grim, but our ultimate future for everyone reading this blog post is that we will need to plan for what will happen when we pass away. The pandemic should have been a major wake-up call to many who do not consider how immediate or sudden death can be. This isn’t meant to scare or intimidate you. I say this to help you understand that once it’s too late to plan for your passing, it is too late. There is no going back to help prepare for this event. The real shame is that you will not be impacted by your decisions not to be proactive, but your family could and probably will be.
On the bright side, it does not take much to prepare for this event. Drafting a will is what can separate your family from another family who spends the time after a loved one’s passing going through financial documents, worrying about the future, and not being able to grieve and share happy memories of a life well-led. In my opinion, avoiding this future for your family is an obligation that we should all choose to take up.
In today’s blog post from the Law Office of Bryan Fagan, I would like to share some thoughts and information on what can happen if you choose not to draft a will. A will does not increase the likelihood of your death. A will does not increase the likelihood of family animosity increasing. Drafting a will does increase the likelihood that your family will have some degree of peace when you pass away. Given that we don’t know the hour or the day that this event will occur, only that it most definitely will occur, the time is now to understand what can happen if you do not take the steps necessary to create a will in Texas.
You won’t get what you want unless you write it down
even if you have never clearly thought through what you want to see happen when it comes to your property at the time of your death, you will likely have a best-case scenario in the back of your mind. By this, I mean that you may not have put pencil to paper and wrote anything down about how you would like your property to be split up or to whom certain items should go, but I bet if you gave yourself a couple of hours, you could come up with a pretty good plan. Unfortunately, if you do not take the time to sit down and plan it out and then spend time creating a will, none of this idealized scenario will come true.
In Texas, if you were to die without a will, then the probate laws of our state would determine how your property is disposed of. Although the laws of what is known as intestate distribution allow for a pretty orderly method of property division at the time of your death, nothing is as good as what you would create for yourself and your family. You know your family circumstances much better than the state of Texas ever could. As a result, you are doing some degree of harm to your family, I’ll be it indirectly, by not creating a will.
Texas law on probate calls for your relatives who are closest to you to inherit the most. Therefore, if you are married and Anne has children, they will stand to inherit the most from you in terms of your property. Most of you’re reading this blog post may ask yourself, what is wrong with this idea? After all: shouldn’t that be the case where your close relatives stand to inherit the most from you at the time of your death. If you do not have a will?
However, keep in mind that you may not have a close relationship with your children or frankly do not want your spouse to inherit much of your property. Your life may be based on relationships you share with extended family, friends, or other persons. If it is not your desire for your immediate family to adhere to gain your property at the time of your death, then this is all the more reason for you to create I will before it is too late. This way, you have the ultimate control over what happens to your property when you pass away.
Consider a situation where you were to pass away, leaving your wife and small children behind. Your intent may be to allow your current spouse to inherit all property from you through the will so that she can use the resources available in the property to care for your minor children. However, if you were to pass on without a will and you have children from a prior marriage who are adults, then the intestate laws of Texas property distribution would go into effect. In that case, your older children, who are adults, would stand to inherit a portion of your property which was not what she wanted in the first place.
Specifically, your surviving spouse would receive her 1/2 share of your Community property, which would probably include the family home; fortunately. Under a circumstance where you pass away without a will, then your spouse would only be able to inherit 1/3 of your separately owned personal property, which may be substantial considering you had a previous marriage and have adult children. This would leave plenty of time for you to have accumulated property before the beginning of your current marriage. Although the family home may be covered by allowing your current spouse to reside there, any separately owned real property would only be 1/3 owned by your current spouse after your passing without a will.
This sets up a pretty tricky and emotional situation between your adult children and your current spouse. Because you failed to draft a will before you passed, your adult children and your current spouse would be Co-owners of separately owned property. Instead of allowing these parties to grieve your passing as they saw fit, each of them is now thrust into a situation where they are having to make decisions about how to proceed with owning property together. Needless to say, this is not an ideal situation.
How are gifts to heirs treated if made before your passing away?
If you were to die without a will, this would have consequences on how you give me during your lifetime or treat your heirs. Alarm Texas presumes that any gift made to an heir is not an advancement on their inheritance. For example, if you are a parent, make a gift during your life of 1/2 of your estate to one child with a clear understanding of this gift is in advance on their inheritance; your failure to create a will would be a problem.
You would have a problem on your hands if you did not have a spouse, then the other half of your estate will be divided up equally between your two children. This means that your child who already received a gift would be able to have 3/4 of your estate at your passing while your other child would only have 1/4. Your child who would only be in line to receive 1/4 of your estate would then have to go to court to improve that the prior gift made to your other child was, in fact, in advance on their inheritance. Unless you want to see your children go head-to-head in a courtroom over your estate, then this would be something certainly that you would want to avoid. The easy way to avoid a problem like this is to create a will.
What if you don’t want your close relatives to get all your stuff when you die?
We have already touched on this subject to a degree in an earlier section of today’s blog post, but I wanted to talk to you again about what could happen if you died without a will and did not want your close family members to get all your stuff. I hate to put things so bluntly or ineloquently, but I think we can talk plainly about what may be a real-life issue facing you and your family. If you die (and again, we all will) and do not have a will, the law will give your stuff to some combination of your spouse (if you are married) and your children.
You may be excellent with this. However, I have practiced the law long enough to know that there are many of you reading this blog post who do not want to see your children and spouse wind up with all your stuff. This may be because your family is well off, you have well-off adult children, and your spouse is financially independent based on having property beyond what is in your community estate. Upon your death, you may prefer to have your property go to a church, charity, or other non-profit organization.
Or, you and your family may have had a falling out over the years to the point where you would rather your property end up with anyone other than your immediate family. This would also put you in an undesirable situation where your family would end up with all of your property at the time of your death or you to pass away without a will. Rather than take the risk that this may happen to you, you should draft a will if you have concerns over who will end up with your property upon your passing. Concerns like this are tempered when you have a spouse and children to whom you want your property 2 end up with a poniard passing. However, if you find yourself in a circumstance where your wishes are not to have your spouse or children end up with your property when you die, you should take matters into your own hands and creative will when you can.
What happens if you die without a will and have adopted children?
Suppose you die without a will; your adopted children are treated the same way as your naturally born, biological children. The Texas Estates code treats adopted children the same as natural-born children. As a result, your adopted child can still inherit from your estate and vice versa if they pass away before you. Note that your adopted child can also inherit from their natural parents. You do not need to be concerned with your adopted child’s natural parents trying to inherit from your child if you were to pass away without a will.
I think this issue bears special consideration because in an age where the Internet allows for easy research methods to determine who your natural-born parents are if you are adopted, then I conceded this may be an issue more so now than in years past. You should not assume that biological children will be treated any worse off than your naturally born children if you were to pass away without a will. Your biological children are in a position where they can inherit both from you and your child’s naturally born parent.
What if you are the parent of a child born out of wedlock?
If you are the parent too what is legally known as an illegitimate child, you should know that your child can inherit either from you or from their other naturally born parent and vice versa if any party dies without a will. On the other hand, your child cannot inherit from you or your family if you are the child’s father if you were to die without a will. There are exceptions to this rule which we can go over now. If you are listed as the child’s father on the childbirth certificate, and paternity is established before the court, then your child would be able to legally inherit property from you or you to pass away without a will.
What should this tell you about the importance of drafting a will?
I hope that through discussing this topic in today’s blog post, we have shined a light on just how important it is for you to draft a will to protect your family and property at the time of your passing. Unless you draft a whale, there is no better way to guarantee that your property and children will be cared for. We can run through every conceivable scenario involving your death and what will happen to your property without a will. Ultimately, it is your responsibility to care for those in your life and care for your property.
Even with the information you have gathered from today’s blog post, it is likely that you will still have questions about drafting a will and things related to your state at the time of your death. It is never too early to start to think about the consequences of your actions in this regard. For that reason, if you have any questions about the information provided to you in today’s blog post, then I would recommend you contact the Law Office of Bryan Fagan.
Our licensed and experienced attorneys can guide you through whatever circumstances you are facing right now with your estate planning and will draft needs. We understand that this is not a comfortable topic for most people but want to make sure that you’re aware of the consequences of your decisions; a consultation with one of our attorneys is free of charge, and we look forward to the opportunity to meet with you to discuss these topics.