Many believe you must have a will for property distribution after death, but that’s not entirely true. While having a will is crucial, it’s not just for the wealthy, the less affluent, or anyone in between—it’s for every adult. If you pass away without a will, the process of probating an estate without a will can be complex. Whether you’re rich, poor, or somewhere in between, having a will is essential. At the Law Office of Bryan Fagan, we can assist you in drafting a will quickly and easily. Contact us today for a free consultation to discuss your needs.
You do not need a will to divide your property among your relatives after your passing. Note that if you do not want your relatives to inherit your property then this is not an ideal spot for you to be in. If you want friends, charities, or your church to be able to get your money after you pass on then you need to have a will. If you pass away without a will and want your church to end up with your money, then you will be out of luck. As you will find out, the state of Texas’ laws on intestate distribution of property would be applied by a probate court judge and your church or charity of choice would be out of luck. Your closest family members, if not the State of Texas, would stand to inherit the bulk of your estate.
What is probate?
When you pass away, the property that you own is a part of your estate. Property can mean real property your home, vacation home, raw land, or commercial property. Cash, personal property, bank accounts, investments, cryptocurrency, and the like are also part of your estate. If you are married, you and your spouse likely share most of your property as part of your community estate. However, you probably also own separate property that you acquired before marriage, which will be divided upon your death. After your passing, your community property will generally go to your spouse and children.
The importance of wills, trusts, and Texas Estates Code
When a court probates an estate, it legally recognizes your passing and authorizes the administration and distribution of your estate. This distribution may follow the terms of a will, trust, or align with the Texas Estates Code. If found to be valid a will or trust would supersede what the Texas Estates Code has to say regarding property division. Meaning that you could divide up property in your will however you would like- it does not matter what the Texas Estates Code has to say about it. If you do not have a will then the court would distribute the property as best, it can along the lines of what the Texas Estates Code would suggest.
The bottom line is that probate seeks to transfer the property of a dead person, in this example, you are that dead person, and into the names of living people- family, friends, charities, churches, etc. The devil, as in many situations, is in the details when it comes to this subject, however. You will need to make sure that your situation is airtight as far as end-of-life planning. No, I don’t mean that you need to constantly review your estate plan to make sure every “I” is dotted, and every “t” is crossed. What I mean is that you need to be sure that what you have for estate planning right now is that you are comfortable with when you pass away. As we talk about frequently on this blog, the trouble with deciding this is that you do not know when you are going to pass away.
Immediate preparedness: the reality of wills and end-of-life planning
If I gave you a ten-year deadline to get your affairs in order, you probably could manage to get around to creating or updating your will. You would know that on January 9, 2033, you would need to have your will up and ready to go. However, you don’t get that kind of advance notice when it comes to your will in real life. You need to be ready right now for an end-of-life situation. This is not me trying to be dramatic or anything like that. This is the reality of the situation staring us right in the face.
The will or lack of a will needs to be what you want it to be always. Is it realistic for you to look at your will every week and make sure it still comports with your wishes? No. Very few people have the time, desire, or need to do that. All you need to do is make sure that your will is well drafted when you create it. Then, as major life events occur- marriage, deaths in the family, etc.- you can then reassess your will to make sure that it is in line with what you want and where you want your property to go at your passing.
What to do when a family member dies without a will
This happens all the time- a relative passes away and you have no idea what to do. This isn’t the type of thing that you take a class for in high school or college. It may be your first time having a loved one who is close to you pass away so it can be difficult to consider that one. There is sure to be a lot of grief, stress, and anxiety in the home when a loved one passes away.
Not knowing exactly how to proceed through all of this makes life even more difficult. This blog post is a great resource to provide you with some basic, general knowledge about how you may need to proceed if someone close to you dies and he or she does not have a will (that you know of). Here are the steps that you or the person named as the administrator of the estate by a court may need to follow.
Probate necessity based on property type and size
The necessity to probate an estate depends on its size (the amount of property owned at the time of death) and the type of property it contains. Certain types of property can transfer to heirs without the need for probate, depending on their nature. If the item or property already has an assigned beneficiary, then there is no need for probate. You, a spouse, or another person with authority to act on the person’s behalf would need to provide proof of death to gain access to the life insurance proceeds, investment, or bank account that has a named beneficiary attached to it.
Life insurance is a great example of a kind of property that does not need to go through probate. Life insurance likely has a named beneficiary who can contact the life insurance company with the policy or account information to notify the company that the policyholder has passed away. That person would need to provide proof of death, usually in the form of a death certificate, to gain access to the funds contained in the life insurance policy. There are two different types of life insurance policies- whole life and term life insurance.
Non-probate assets: bank accounts and retirement funds
Bank accounts are another type of property or asset that can pass without having to do so through probate. You can establish this by linking a payable-on-death form to your bank account. If you are named as the payable-on-death beneficiary, just take the death certificate to the bank holding the account. This allows you to access the funds within the account. Depending upon the financial institution in question you may need to bring additional information when you plan on providing the death certificate, however.
Does the deceased person have a 401K, IRA, or another retirement account? In that case, these accounts do not need to go through probate for distribution after an individual’s death. All you would need to know is the beneficiary information on each account for that person to contact the financial institution to line up how to access the funds. Like other non-probate assets, you will likely need a death certificate to access these funds if you are the named beneficiary.
Where is probate filed?
If you do need to file for probate if a loved one passes away, then you would do so at the county clerk’s office for the county in which the deceased person lived. Depending on the size of the county where the individual lived, a county court may have jurisdiction. Alternatively, a designated probate court may hear these types of cases. There will likely be filing fees associated with the case and more costs to have the case administered and finalized by the court moving forward.
When determining the heirs to a particular person’s estate you will need to determine what property owned by the person was separate property and what property was community property. Other important questions to consider are whether the person was married, if they had children, and whether those children were also the biological offspring of the deceased individual’s spouse.
Why should you want to die with a will?
You probably have a general idea of how you want your property handled after your death. However, if you die without a will, you can disrupt these plans, as your property may not be inherited according to your preferences.
To ensure that your spouse inherits all your property, whether community property or not, upon your death, you might prefer your spouse to have the freedom to divide the property as they see fit rather than Texas laws dictating the division. If you were to die without a will then there is no way of guaranteeing that this can happen. If you die survived by children who are not also children of your surviving spouse, your spouse may only inherit their half-share of the community property.
Additionally, your spouse would only stand to inherit 1/3 of your separate property and a life interest in 1/3 of any separate real property. This is a tricky and touchy situation where your current spouse may own property alongside your children from a prior marriage. It would be inevitable that conflict and acrimony would arise out of an emotional and contested situation involving a sizeable estate, hurt feelings, and grief over the loss of a loved one. Creating a will and discussing your intentions with your loved ones could prevent these issues.
Directing your property to your desired beneficiaries
As mentioned in this blog post, if your closest individuals are not your immediate family members, they will miss out on inheriting your property in a probate case if you die without a will. If you are unmarried and die without a will, your roommates or close friends cannot inherit any of your property.
We see this happen frequently when a close friend has been the one caring for you at the end of your life. Dying without a will means that that close friend would not be able to inherit any property from you even if that was your desire all along. You would need to specifically leave property to that friend in your will for that to take place. Otherwise, it would be your family members who would stand to inherit your property.
In Texas, a parent does not have to leave property to their children. However, if you die without a will then the court will leave property to your children whether that was your desire in the first place. Again, the key takeaway from this situation is that your children will inherit your property when you pass away. This may not be what you want to see occur. If it is not what you want, then you certainly need to work to have a will that reflects your actual wishes rather than relying upon the Texas estates code and their laws for the intestate distribution of property.
Risks of dying without a will
There are risks of unnecessary costs and delays if you pass away without a will. Your assets can become tied up in the probate process for an indefinite period, which will almost certainly negatively impact the people in your life. Going through probate not only can take money but also takes time. Determining your heirs can be complex depending upon your specific circumstances. The court will likely have to appoint an administrator who would be responsible for settling your estate and distributing property as well as paying off creditors. Additionally, the administrator must locate heirs, keep track of all your assets, and distribute property to heirs after paying creditors.
The probate court will resolve disputes between parties if an estate cannot be settled civilly. Probate courts especially in larger counties are oftentimes very busy which means that it can take months or even years to settle an estate. While this is going on legal fees and other court costs can add up quickly. It is not uncommon for the value of an estate to diminish significantly or even deplete completely if the court proceedings last too long.
Having a will can not only save time and money but can help your potential beneficiaries. If there is someone in your life that you know could use the money you are leaving to him or her immediately then doing so through a will is a much better plan than assuming the money will get to him or her through the probate process. All of these are relevant considerations for you to think about and act on as part of your estate planning.
Conclusion
While having a will is crucial for ensuring your property is distributed according to your wishes, it’s vital to understand the complexities of probating an estate without a will. This process can be daunting, regardless of financial circumstances. At the Law Office of Bryan Fagan, we emphasize the importance of having a will for every adult, offering expert guidance to simplify the probate process and secure your legacy. Contact us today for a free consultation to discuss your estate planning needs and ensure that your wishes are honored after your passing.
Other Related Articles
- Celebrities who died without a will: Kurt Cobain
- Common Misconceptions About Dying Without a Will and How to Avoid Them
- Texas Intestacy Laws: What Happens Without a Will?
- Inheritance Laws in Texas: What Happens Without a Will?
- What are the impacts if you die without a will in Texas?
- Why you would want to update your will and trust if you are moving to Texas from another state
- Probating an Estate Without a Will
- How do you void an existing will?
- Will Basics in Texas
- How much does a lawyer charge to draw up a will?
- What will it cost me if I delay getting my estate planning done… or just don’t do it all?
- How much should it cost to update a will?
- Who has power of attorney after death if there is no will?
- How much does a lawyer charge to draw up a will?
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
