Looking back on it, there may have been no bigger star in music during the entire decade of the 1990s than the lead singer of Nirvana, Kurt Cobain. Mr. Cobain led this rock/grunge group to unparalleled heights in the early 1990s and then, almost as quickly as he appeared on the scene, he exited our lives due to his having committed suicide. He left behind a wife who was quite famous in her own right, Courtney Love, as well as a young daughter who at the time of his passing was a toddler. Also left behind were countless memories of music fans as well as a significant amount of property.
When we talk about a person like Kurt Cobain, it can sometimes make it seem impossible to compare his situation to yours or mine. Our circumstances are completely different from his- or so it seems. He was one of the most famous musical artists of his generation. He was wealthy. He was young. He had accomplished so much but took his own life at the tender age of 27. The extent to which what he was going through as far as planning out his estate is about the 100th most asked-about subject related to the end of his life. His marriage, his career, the circumstances of his death, the aftermath for his bandmates, and the future of music at the time of his passing were all more pressing questions in the media.
With that said, while these were the questions that most people wanted to learn the answers to, Mr. Cobain’s daughter would have cared more about her dad's efforts made toward estate planning were she old enough to care about such things. Now that she is an adult this is a thought which has probably crossed her mind a time or two. Here is where we can learn a valuable lesson about estate planning while being a family man or woman. What you do when it comes to estate planning matters less to you than it will to your children and those people for whom you provide care.
Now, to compare your mindset to that of Kurt Cobain may be a little silly. Mr. Cobain had a rather infamous relationship with substance abuse and ultimately took his own life. Hopefully, this is where the comparisons between his situation and yours stop. However, the result of Kurt Cobain's failure to prepare his estate may end up being your exact situation as well. He died without a will and the State of Washington had to determine where his property ended up. If you die without a will then the State of Texas will be forced to make similar decisions.
Everything that you have worked for and all the good that you want to do for your children will go out the window if you do not have a will. Preparing your estate means being able to control where your property ends up when you pass away. This is how you ensure that the work you put forth for your children makes a meaningful difference in the life of your children. That’s not to say that your money and property will go up in smoke if you die without a will. However, what it does mean is that you must assume that some portion of your money and wealth will be spent on things other than your children were you to die without a will. For most people, this is not what you want to see happen. Leaving it up to chance that something may happen for your children that is positive is not exactly the safest bet in the world.
I think of it like this. Imagine a tornado coming into a town and blowing buildings and stores and schools up into the air. Now, it is possible that when the dust settles everything will fall back down to the earth just as it was the moment before the tornado hit. However, we all know that the likelihood this happens is extremely low. Rather, the most likely outcome of a situation like this is that the town is going to be destroyed. Or at least will be unrecognizable. While this is not a perfect comparison to dying without a will, I think the point is a good one. You are completely leaving it up to the forces of fate when you do not have a will.
Dying without a will- don’t do it
The Texas Estates Code will determine where your property ends up if you die without a will. This may sound ok at first glance. The Estates Code sounds formal and legitimate. You may not even notice much of a difference between what would have been decided in your will and how the law would distribute your property to heirs were you to die without a will. Let’s walk through this process so that you can better understand what to expect. More specifically, since you will no longer be living, we can see what your family will be going through were you to die without a will.
First, take note that rather than being able to take some time to remember you for the person you are today once you pass away, your family will have to shift gears almost immediately to being concerned with your stuff. Courtney Love could not mourn Kurt Cobain’s passing for all that long. She probably had to concern herself with bills, expenses, and things of that nature. She lost her husband’s income and as a result the property in Mr. Cobain’s estate most likely became a relevant concern for her almost immediately. She needed to figure out what was going on with his estate because she and her daughter needed access to the funds therein to live.
Filing a probate case is what would need to happen for Ms. Love to be able to eventually settle her deceased husband’s estate. This takes time and money. Ms. Love may have had money, but did she want to have to go through the time necessary to do all this? Surely Mr. Cobain had someone in his life who was there to talk with him about how to plan his estate and handle his affairs. He may have, but at his age, with his responsibilities and his level of addiction, it may not have mattered. What his wife was left with was the need to care for a young child, manage her grief and attend to the matters related to his estate. All in all, a very undesirable situation for a woman who was quite young herself.
The probate case involves a deceased individual’s spouse or other interested party like a family member filing a petition to probate the estate. This alerts the probate court that a person has passed away. A death certificate would need to be obtained and then the court can go about naming someone as the administrator of the deceased’s estate. This could be anyone who the court believes can fulfill the duties of a probate case on behalf of a deceased person’s estate. If you pass away that person could be your spouse, for instance.
Now imagine your spouse being in the same position which Courtney Love likely found herself in back in 1994 when Kurt Cobain died. It doesn't matter if someone is rich or poor- we all feel emotions. Your spouse would be experiencing the same sort of emotional pulls that Courtney Love was when her husband died. Courtney Love had resources available to her that your spouse likely does not. In many ways, it is more crucial for your spouse that you get a will ready while you still can. If not, you will guarantee that your spouse has to go through a probate case like this.
Even if you don’t think that this is such a bad experience (let’s say that this is true, for argument’s sake) there are other negatives associated with a probate case. Your spouse and your heirs are going to lose out on time. Time, as any person who dies before he or she can create a will can attest to, is finite. All the money in the world cannot buy you more time. Your spouse and your family members are going to lose a lot of time by going through a probate case. This may not seem too bad if you assume that the court will divide your property in a way that is satisfactory to your family members. However, time matters a great deal to some people based on their circumstances.
Suppose that you have a niece that you are very close to. She has been like another child to you throughout the years and you very much want to help her financially when you pass on. She is someone who has always struggled to find a consistent income. Therefore, you planned to leave a lot of money to her when you pass on via a will. However, before you could put those desires into writing you passed away unexpectedly. In that situation even if your niece can receive property from your estate it would take months for that to happen. She would have to wait to receive property that could have been hers almost immediately if you had drafted a will.
On the other hand, your niece in the above example may not be able to receive any property out of your estate. In fact, for many people, your niece would not be in line to receive property from your estate. The reason for this is that your immediate family such as a spouse and your children would stand to receive most of your property if you die without a will. Where does that leave your niece? Out in the cold, possibly. Eventually, your niece would be tracked down and notified of your passing and she could participate in the probate case as a potential heir. However, since the laws of intestacy in Texas do not count her in the immediate “ring” of family members who stand to inherit property from you, she would not be among the most likely people to end up with property out of your estate.
So where does this leave you? Hopefully with the knowledge that dying without a will means that you will be put in a position where your estate will take longer to settle. A person with a will has a straightforward path to discuss with his family how to settle matters related to money after he dies. A person without a will has to hope that he dies during a time when the probate court's docket isn't all that heavy so that his family can settle his estate and move on with their lives. Since I don't know of a probate court in the area that is lacking in cases this may be a far-fetched dream.
Another consideration for you and your family is that when you are going through the estate planning process it means that you can set your course and decide about how your property is going to be distributed. Some people would call this power. I would call this peace of mind. Celebrity or not, we all want what is best for those around us. Dying with a will is best for the people in our lives. Dying without a will opens our families to needless delays, complications, costs, and risks. It is not an overstatement to say that your legacy will be determined in large part by how well you take care of your family after you pass on.
Where does this leave you when it comes to your estate plan?
Without a doubt, this is sobering material that we have been discussing in today's blog post. Nobody is excited to think about their death. Even less excited are most people when it comes to thinking about what it means to not take care of their family when they otherwise could have. Certain opportunities come across in limited quantities. It will not be forever before we can plan our estate, draft a will or engage in the other financial planning steps that we have outlined today. This means that time is of the essence and that you need to be able to have a goal, develop a plan to achieve the goal, and put that plan into motion.
Where do you start, though? You have all these responsibilities in your day-to-day life. It's not like you have time to estate plan, right? This is where I would challenge you to make the necessary time to plan your estate and attend to matters which are related to your life and your money. More than that, you should think about all these issues and how they will be handled after you have passed away. Since you can’t plan for the specific time and date of your passing the best you can do is plan for what will happen after you pass on.
It doesn't take an estate planning expert to help you think about what people, places, and things are most important to you. What matters most to you is an intensely personal subject and one that nobody else may be able to help you with right now. So, take some time to think critically about what matters most to you in the world. In other words- I am recommending that you find your "why." Once you focus on your main motivators you will find that it is much easier for you to set aside the necessary time to go through those estate planning steps.
This is where hiring an experienced estate planning attorney can make a huge difference for you and your family. You can have the best intentions in the world but if you cannot execute those intentions they don't mean as much. Therefore, once you identify why you are doing this estate planning the next thing that you need to do is to figure out how you are going to develop a plan which can achieve those goals. The attorneys with the Law Office of Bryan Fagan excel at being able to help guide people just like you whose good intentions need to become outcome and goal focused.
We have worked with a tremendous number of families in southeast Texas to help clarify goals and figure out a plan to help those folks reach their goals. We can do the same thing for you and your family. First things first, however- you need to reach out to our office today so that one of our attorneys can sit down with you to find out more about who you are, what your goals are, and how to best help you achieve those goals.
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 to learn more about the world of Texas estate planning as well as what may occur for your family if a probate case is filed.