When you create a will, you are creating a document that declares to the world how you want your property to be distributed after you pass away. A will is a great tool for planning matters related to your estate because you can appoint a person to manage these issues for you after you die. This person is known as an executor. An executor has a responsibility to follow your wishes as laid out in the will to the greatest extent possible. Their judgment is important but he or she will not be able to substitute their opinions for yours when it comes to handling property-related matters for you.
On a basic level, your executor will first need to ensure that the debts and expenses of your estate are paid before distributing the property. This means notifying creditors of your passing to allow them an opportunity to come forward to be paid whatever debt is owed to them. There may also be taxes and other expenses due on their home, property, or other item which needs to be paid before distributing property. Before any property can be distributed to the people named in your will these expenses and debts must first be paid.
Another major benefit of having a will is that it allows you to care for your children if you pass on before your children turn 18. As a veteran, you likely find yourself in a position where your job duties are at least somewhat more dangerous than those of a civilian. While it is a tremendous honor and privilege to serve in our country's military that does not mean that doing so comes without risks. While you may not find yourself on a battlefield anytime soon, there are training exercises, travel, and the day-to-day duties of a military member which have added risks associated with them. Being prepared means having a plan for your children in the event you pass away.
When you die without a will that means that you lose a great deal of your autonomy over what happens to your property and minor children if a co-parent is not still living. The State of Texas has an Estates Code which determines how the property of people who die without a will can be distributed. This is based on the family which you have living as well as the debts which exist for your estate. Immediate family will inherit property from you (spouse and children) once debts are paid. However, a probate court judge will follow the Estates Code when determining how to divide your property. Your intentions and those of your family are not relevant to this consideration. The judge will also appoint someone to handle the distribution of this property as well as someone who will become the guardian of your children if need be.
Why could you need to have a will?
In Texas, if you die without a will and are married then your spouse will receive all of your property in most situations. If you did with a spouse and children then your spouse would receive a life estate in your marital home (if you own one), as well as a percentage of the property which you own. Your parents will receive the property if you die without a spouse or children. If you die without a spouse, children, or parents then the laws see to it that most immediate family members become heirs. If a search is performed and you have no relatives who would inherit property from you then your property would go to the State of Texas. While I know we all love Texas it’s probably not the case that we are excited about the government being able to inherit all our stuff after we die.
A reasonable question to ask is why should you go through all the effort to create a will when the probate court judge would end up dividing your property in a way that you are fine with? Meaning- if the Estates Code has all your property go to your wife and children anyways, what is the big deal if you die without a will? First, you have done nothing in that scenario to account for what happens to your minor children. Yes, you are married at this moment, and the likelihood that your spouse dies at the same time as you is not exceptionally high. However, you have no way of anticipating what will happen to you and your family in the future. What you can do is create a plan within your estate plan which can account for the possibility that something bad could happen to you and/or your spouse while your children are still young.
What may also end up happening is that the court puts limitations on how your spouse can utilize your property of yours which ends up going to the children. What a court sees in this situation is a parent who may waste the resources provided to their children via the inheritance process. See, the court does not know the character of your spouse nor her ability or willingness to be responsible for the property that was passed down after your passing. Because of this, your spouse may be hamstrung in terms of how she can utilize property provided to her and the children in the will. This is the last thing that you want to see happen after you pass away. These limitations may require your spouse to ask the court for permission to spend money unless it is on essential items like food, clothing, and housing payments. This is a cumbersome and frankly unnecessary consideration for most people to have.
The military branch that you serve under may have resources available to you which can help you draft a will. There is no guarantee of this and the circumstances which you find yourself in may make it difficult for you to even take advantage of them right now. This is particular to your life and something that you need to consider before even trying to go about drafting your will on your own. This is where having an experienced attorney can help you. The last thing you want to do is commit yourself to something as significant as drafting your own will only to find out that you lack the time or wherewithal to pull that off. If that is where you are right now what can you do to save yourself a lot of wasted time and money?
Working with the experienced estate planning attorneys at the Law Office of Bryan Fagan is a good place to start. Our licensed estate planning attorneys take a great deal of pride in being able to provide top-notch legal services for our military veterans and their families. We are fortunate here in the Houston area to be home to thousands of veterans and we aim to serve you and your families just like you have served our nation over the years. For a free-of-charge consultation with one of our attorneys please reach out to us today.
What information is helpful to bring to an initial meeting with an attorney?
If you decide to ultimately reach out to an estate planning attorney to learn more about the will drafting process, then I am confident that you will then decide to work with an attorney. There is just so much at stake when it comes to drafting a will that deciding to go about producing goodwill on your own can seem like such a burden and ultimately a challenge that may be beyond what you are capable of at this moment in time. That's not to say that drafting a will is over the top difficult. However, what it does say is that you have such massive responsibilities on your plate that to add another on top of that pile is probably beyond what you can pay attention to.
You should have a basic understanding of the assets that you own so that you and your attorney can begin to prepare for drafting your will. The kind of asset that you own as well as an approximate value of those assets would be most helpful. From what I have learned when it comes to military estate planning, even if the military offers someone to you who can help you plan your estate the person who is tasked with assisting you will recommend that you work with an attorney who can help you plan where your money is going if your estate is larger than $1,000,000 in value.
Without question, at least when it comes to the issue of property, the most important parts of your will are those which relate to where your property will go after you pass away. If you have a will that will be decided before your passing, however. The people that you name in the will as persons who will be receiving property are known as beneficiaries. There are going to be personal considerations that you need to pay attention to when it comes to naming beneficiaries in your will. Who you want to inherit property from you after you're passing will depend upon several factors in your life. Think clearly about what those factors are and be intentional with how you determine who will ultimately be able to inherit property from you.
As we mentioned earlier in today's blog post if you are the parent to minor children then you should specify who you want to act as guardian of the children within your will. It is also wise to consider naming an alternate guardian should something happen to the primary guardian listed in the will. It is always possible that the person named as the guardian in your will changes their mind and is no longer willing to fulfill that responsibility. It could also happen that the primary guardian predeceases you and is therefore not available to act as guardian of your children if something were to happen to you. Keep in mind, however, that the guardian you name in your will would only have those responsibilities if your child's other parent dies before you do.
What is trust and how can it help your family?
A trust is another estate planning tool that is at your disposal here in Texas. Ownership of items placed within a trust would be held by a trustee who manages the property for the benefit of a beneficiary. The person you name as trustee of the trust could be a relative of yours, a friend, a bank, or any other person who you believe is qualified to fulfill those responsibilities. A trust can even be set up within your will. For example, a testamentary trust could be created to best ensure that your minor child will have money for important events in their life like high school graduation or even college graduation.
Please keep in mind that creating trust can be expensive. If you have a large estate or are part of a blended family, then a trust may be worthwhile for your family. In many cases, a trust can be cumbersome because the trustee would need to sign off on moving or selling any property contained in the trust. For example, if you purchased a house and the owner of the house is your trust then the trustee would need to approve of and go through the process of selling the home. Even if you are funding the home sale and all the mortgage payments the trustee would still need to sign off on the sale. In other cases, people will create a trust but fail to fund the trust with any property. All in all, you need to think about whether you can accomplish your estate planning goals without the creation of a trust. If there are any alternate options rather than creating trust, then you should look into utilizing those options.
Another consideration when it comes to trust creation is whether you and your spouse have life insurance policies. For example, suppose that you and your spouse both have term life insurance policies. In that case, the two of you should coordinate with your life insurance company to make sure that the proceeds from the life insurance policy Go to the trust rather than directly to your minor children. This can be something that you work out in terms of naming beneficiaries or secondary beneficiaries under the life insurance policy.
As far as a termination date for the trust is concerned, most trusts will terminate at a specific age for your children as noted in your will. At that point, the trust must distribute trust property to the beneficiary. Usually, it works out that the trust can be terminated if one property is distributed to each child when he or she reaches a specific age or when the youngest child reaches that age. You should work with an experienced estate planning attorney to determine the best option for your family based on the number of children you have and their ages.
Who is going to be the executor of your will?
The person whose responsibility it is to ensure that the terms of your will are followed is called the executor. The executor must collect all the property contained in your estate and keep track of it after you pass away. Next, the executor will pay any debts that you have as well as any outstanding taxes owed. It may be that you have debts that need to be paid and property that you own would need to be sold to pay those deaths. In that case, any remaining property would be distributed to beneficiaries after those debts are paid.
You can choose to list your spouse as the executor of your estate. However, this is not necessary. Keep in mind that the person you select should be someone that you can trust and who has good judgment. Your executor will have the ability to sell property and distribute that property either to beneficiaries or to creditors. Your executor must be someone who has your trust and can care for your property after you have passed on.
With so much at stake when it comes to creating a will you need to be sure that the decisions that you are making are in your best interests and those of your family. It is smart to ask questions about this process if you are unclear about your responsibilities or the outcomes of creating a will. For that reason, reaching out to an experienced estate planning attorney can truly be a game changer for you.
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 law as well as about how your family’s circumstances may be impacted by the filing of a probate case.
