The beauty of living in the United States and Texas is that the law allows you to Hold a lot of decision-making authority when it comes to determining where your property ends up after your passing. Most of this decision-making authority rests in you being able to make a will that states how you would like your property distributed and to whom the property should go. In our opinion, every person over the age of 18 should have a will no matter what their financial circumstances look like. Getting a well-drafted one does not have to be expensive and does not have to take a lot of time. Doing so can provide an immeasurable amount of benefit to you and your family moving forward.
However, despite recommendations to do so, some of you likely reading this blog post will not take this advice and have a will drafted before you pass away. Worse yet, you may get into a position where you are incapable of drafting a will while you are alive due to a mental or physical limitation. In that case, you would not be able to determine where and to whom your property goes after you pass away. Not only can this be a helpless feeling for you, but it can seriously harm those around you. Imagine being someone who could stand to benefit from the property that you have worked hard for in your life. All it would have taken for you to benefit those folks would be to draft a will. You are not having done so can cost these people a great deal in time, money, and Peace of Mind. When we talk about your legacy this is what we have in mind.
However, if you do pass away without a will then the state of Texas will determine how your property will be divided. The Texas probate code contains statutes that will direct a judge on how to divide your property in a probate proceeding. Not only does this process not consider your wishes regarding how property should be distributed but it also takes time and resources away from your estate that could have gone to benefit your family or others. Not only that, but these statutes do not consider that your family may not be your desired recipients of yours regarding the property.
Some of you may be telling yourself that drafting a will is unnecessary because the statutes that we are about to discuss mainly say that property will be distributed to your spouse and other close family members when you die. Where is the benefit to your family of your drafting a will if the law provides for the property to go to those people regardless of what you say in the will itself? Bear in mind that you may want people outside of your family to inherit some or even most of your property. In addition, the probate process can be time-consuming and expensive. In many cases, a will allows you to bypass the probate process and allows an executor to divide property quickly after your passing rather than having to rely upon A probate court judge to administer the process and oversee the division of your estate.
Anytime you can remove a middleman or intermediary from your affairs is a good thing. Involving a middleman means needlessly having someone else become involved in your affairs when you can otherwise handle them without interference. In this case, the probate court not only acts as a middleman between yourself and your family when it comes to your property but their presence also forces your family to have to wait to receive property that otherwise could and would be theirs. That a probate court judge represents the government, and you will be citing authority to the government to divide your property at your passing should also give you plenty of reason to stop and consider why you have not had a will created yet. No matter how you vote or what your political beliefs are I cannot think of a circumstance where your family would be better served by having the government make decisions in your case than you.
If all of this talk regarding drafting a will has motivated, you to begin the process of will creation then please do not hesitate to contact the Law Office of Bryan Fagan today. Our licensed estate planning attorneys can work with you 2 learn about the estate planning process and develop a strategy on how to divide property patch of passing that considers your wishes and the needs of your family. A free-of-charge consultation with one of our estate planning attorneys he’s available to you six days a week in person, over the phone, and via video. We seek to serve our community as best we can and allowing for free-of-charge consultations opens the door to helping everyone in our area gain an insight into estate planning that they otherwise may not have.
Without knowing you on a personal level, it would be foolish of me to try to assume that I know what your legacy will be or what you want your legacy to be after you pass on from this life. However, building a legacy means improving the lives of those around you and leaving them with positive memories of you in most circumstances. If that sounds like a legacy to you then creating a will before you pass is one of the most effective ways of preserving or building a legacy in the first place. Our attorneys do not make decisions for you when it comes to creating a will. Rather, our attorneys will guide you in the decision-making process and help you to brainstorm ideas and solutions to problems that you may be experiencing. Along the way, we will seek to educate you about the estate planning process so that you can make better decisions for yourself and your family.
Passing away while unmarried without children
Almost without a doubt, the group of people that I’ve run into the most frequently who believe that they do not need a will because of their station in life are unmarried people who do not have children. If this is a group that you are a part of then you should pay close attention to what we are about to discuss. the law applies to you just as much as it does to a person who has children or is married. Additionally, you should not assume that you have any less to lose or that your family does not stand to benefit as much from your property as they would if you had children or were married. This is a dangerous way to approach an important subject.
If you pass away and both of your parents are still alive, then they will receive all of your property. It doesn’t matter if your parents are married, divorced, or were never married in the first place. Any property that you own at the time of your passing will be divided in half with one parent getting 1/2 and the other getting the remaining 50%. If one of your parents has predeceased, you then the surviving parent get 50% of your property and your siblings will share equally in the remaining 50%. Not having any surviving parents means that your siblings would receive all your property and would divide it into equal shares. Finally, if you have no surviving parents or siblings then your property would be divided equally between your mother’s side of the family and your father’s side of the family.
Here is something for you to chew on as you consider whether You as a single person truly need a will. If you have no family who could stand to benefit from the property that you own at the time of your passing, then the property will pass to the state of Texas. That’s right, the government of the state of Texas would be able to acquire all your property when you die. How they use the property or to whom they sell the property would be completely up to them. For my money, this is probably the most critical reason why you would want to have a will in place before passing away.
Wouldn’t you want to be able to exert control over how your estate is divided upon your passing? Wouldn’t it be better for you to be able to determine where your property goes after you pass away? Is there a charity, church, or other organization that you think he would like your property to benefit from? If so, you need to take steps to ensure that this organization would be able to receive your property. Otherwise, there will be no opportunity for a probate court judge to pick this cause or organization out in particular for your property to go.
Or think about a close friend or acquaintance that you have who could stand to receive property and receive the financial benefits of this property after you pass away. This may have been someone with that you have taken a shining to or developed a relationship over the years. Is that person a disabled person? A single mother? Or even an elderly neighbor who you know could stand to benefit from you being a state no matter the size? These would all seem to be worthy recipients of your property after your passing. Again, the probate court judge would not be able to pick your elderly neighbor out of a hat and say that he or she gets your property at your passing. This can only be accomplished by your having a will completed before your passing away.
Passing away while single with children
If you are single and have children, then your property would pass all to your children in equal shares when you die without a will. An example of this circumstance would involve you passing away with three children. If you die without a will and all three of your children are still alive at the time of your passing, then each of them would receive 1/3 of your state. This can become slightly trickier if you consider that one of your children may have predeceased you. In that case, when you pass away your two surviving children will receive 1/3 of your estate while your deceased child’s children would divide up evenly the one-third that would have gone to your child if he or she were still living.
Passing away as a married person without a will
the assumption for most people is that if you pass away without a will in Texas and are married then your spouse would receive all of your property. While this can be the case it depends upon how your property is classified at the time of your passing. Texas is a community property state. Community property means that it is presumed at the time of your divorce or death that all property in existence owned by you is Community property. in that case, your spouse would inherit all your property if it was all classified properly as Community property. However, if you own any separate property then the circumstances can become more complicated.
Under Texas laws, if you are married and your spouse, as well as your children, survive then your spouse would inherit all of your community property if all of your children are also the children of your current spouse. However, if you have children who are not from your marriage to your spouse then half of your interest in the community state would go to your children from outside the marriage and your spouse would keep only their 1/2 portion of the community estate. Again, if you have no children then your spouse would inherit all your community estate.
This is only a portion of the discussion that we need to have on the division of property at the time of your passing without a will. We also need to go over how separate property will be treated and divided. Separate property is defined as any property that you owned before your marriage, acquired during the marriage by gift or inheritance. Separate property is not treated the same way as Community property as far as how it is distributed after you pass away. For separate property, if your spouse and children survive then your spouse would receive 1/3 of your separate property. Additionally, your spouse would receive a life estate in 1/3 of your separate property that is real estate. This would mean your family home would be a life estate for your spouse. Your children would inherit all the rest of your separate property.
It can become cumbersome when talking about separate property that you own if you die married but without children. In that case, your separate property that is not real estate will be distributed to your spouse. Keep in mind that if you have parents or siblings that are alive at the time of your passing your spouse would receive only half of your separate real estate property. In that case, the other half would go to your parents or siblings based on the language In the Texas probate code.
Final thoughts on heirs and dying without a will
The information that I just provided you with will hopefully be of some help to you as you begin to sort through the process of drafting a will sooner rather than later period however, bear in mind that this is basic information that I provided you with. If your family history is more complicated than what I just laid out to you in the above examples, then you will probably need to obtain further information and will almost certainly need additional advice on how to proceed when it comes to drafting a will. An example of a more complicated circumstance that may be relevant to your family is a blended family. If you have been married more than once and have children with more than one man or woman then you can be in a difficult position when it comes to passing away without a will.
If you have stepchildren that you would like to be able to inherit property from you then you need to have a will. The reason for this is that stepchildren are not able to inherit from your estate under the Texas probate code. In that case, you would need to have a will that specifically directs your executor to distribute certain property to your stepchildren.
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 estate planning attorneys offer free of charge consultations 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 Texas estate planning as well as about how your family circumstances may be impacted by an end-of-life situation or the drafting of a will. Thank you for your interest in our law office and we hope that you will join us again tomorrow as we continue to share interesting and unique information about the world of Texas estate planning.