Having a will in place when you pass away means that your property- money, physical possessions, real property, and other assets- can be distributed amongst the beneficiaries named in your will according to your wishes. You can also arrange for a plan as to how you want your children to be cared for if you and your co-parent or spouse are unable to care for your children. If you die without a will then a probate court judge will follow the laws of Texas when it comes to figuring out how to divide your property.
Dying without a will means that you are not going to be in a position to pick where your property and assets go after you pass away. All your property will be subject to the discretion of a probate court judge who does not know you and does not know your family or anyone else in your life. Instead, he or she will assess the situation, determine what heirs you have and then divide up property based on how the intestacy laws of Texas dictate your property ought to be divided. Not exactly the most preferable way to handle the division of your assets.
If you have brothers, sisters, cousins, grandchildren, a church, a charity, or anyone else who is not a child or spouse that you would like to receive property from you at your passing then you need to get a will set up. Otherwise, anyone who is not a child, or your spouse is unlikely to receive any property from you at all. What's more, it is going to take time for a probate court to confirm that all possible heirs of yours have been notified about your passing. On top of that, any creditors of yours will also need to be notified and allowed to come forward to have your debts paid before any heir receives property. The process that I am describing is a probate case and can take some time to complete. All the while, the property in your estate is paying for the probate case.
When you have a will set up before your passing you put yourself and your family or other beneficiaries in a great position to be able to receive the property that you have worked so hard to accumulate. You get to decide where your property goes- not the government. That's a strong statement to make! Texans like us prefer to be able to handle our own business rather than deferring to the government. Certainly, the property and assets in your life are better divided by you than by a judge.
When you die with a will in place you can determine what happens to your property- where it goes and how much goes to each person. You are going to name an executor in the will who will see to it that your instructions in the will are followed. Those instructions are going to be followed- not the wishes of the executor or what the executor thinks should happen. Rather, the executor has a legal obligation to follow the terms of the will, or he or she can be sued by one of your beneficiaries are removed from acting as executor by the probate court judge.
Do I need a will if I am married?
One of the great misunderstandings that people have regarding wills is that you do not need to have a will if you are married. The fact of the matter is that you do need to have a will even if you are married. The property in your life does not all go to your spouse if you die married. As an aside, you have no control over when your spouse dies. That is a difficult concept to think about, but it is the truth. We can’t necessarily name the time and place of our spouse’s death any better than we do that for ourselves. The best we can do is prepare for end-of-life scenarios as best as possible. Certainly, one of the best ways to prepare for an end-of-life situation is to have a will. This is true even if you are married.
The law in Texas says that your property will need to be classified as either separate or community when you die without a will and are married. Community property is all property that you acquired while your marriage- this is the presumption that applies, at least. The money you earn from your job(s), retirement accounts, bank accounts, real estate, etc. All of this, if it is acquired during your marriage, is presumed to be community property belonging to you and your spouse equally. It doesn't matter who earns more money. All that matters is that the property was acquired during your marriage.
On the other hand, separate property is any property that is not considered to be community property. This would mostly be property that you acquired before your marriage or acquired during your marriage either by gift or inheritance. Depending on your age and the length of your marriage you may find that most of your property is either community or separate property. If you got married relatively young with little property that you owned before your marriage, then it is probably true that most of your property is community property.
Your property will be divided between your spouse and your children at your death (if you have children). Children of your current marriage, children not of your current marriage, and your spouse will share in the property in various ways. If you have no spouse, then any surviving children would split the property that you own. There would be no community property under this situation since you were not married at the time of your passing. It is complex how the property is divided if you are married and do have children. The property division following the laws of intestacy in Texas may not result in having the property divided in the way that you had envisioned. It is better to have a will, even if you are married so that you can be sure you are going to be able to divide up the property in the manner of your choosing.
Dying without a will- what happens to my minor children?
This is where things start to get important. More than the property contained in your estate, if you have minor children when you pass away you are putting them in a bad situation if you pass away without a will. For one, if your child’s other parent is already dead at the time you pass away, or he/she passes away at the same time as you, then you put your children in a position where a grandparent will likely be named as the conservator of your children. A court will need to determine which set of grandparents is better suited for this responsibility. This can add insult to grave injury for your family. Imagine having to go through the shock and trauma of dealing with your passing only to then be told, possibly, that he or she is not able to care for their grandchildren? This is a situation that you are essentially putting your family through by choosing not to have a will as a parent of young children. When you have a will you can name the guardian(s) of your children in that document.
How important is estate planning?
Do only rich people need wills? This is the sort of question that an estate planning attorney is asked with some frequency. Many of us see movies and television shows that depict people in various situations with wills and 9 times out of 10 the person who has the will is rich. We can all picture the scene in our minds right now- the lawyer is reading the rich, old man's will to collected family members who are sitting on the edges of their seats in anticipation to learn what their deceased relative has left for him or her. When all the "good stuff" goes to the man's young widow every roll their eyes. Is that the sort of thing that happens in real life?
The reality of the situation is that it is important for each of us, as adults, to have a will. This is true even if you do not consider yourself wealthy, rich, or someone who has a lot of property to pass down to other people. You may see yourself as not being wealthy enough to mess with a will, but I would argue that you are looking at the situation incorrectly. Rather, I wouldn’t look at it as a rich/not rich thing. I would look at it as a legacy thing. What do you want your legacy to be? If you have already established that you are not a rich person and are not likely to die a rich person you need to think about your legacy being in a different area. Your legacy can be that you thought enough of your family, friends, and others to plan your estate matters fully.
By having a will, you are going to be able to help your family attack one another and possibly hold things against one another at your passing. When you die without a will there can be a lot of second guessing that happens. There can be a lot of second-guessing when you die with a will, too, but at least that second-guessing will be done of you and not each other. It would be a shame for your family to focus on property and "stuff" when you pass away rather than to be able to focus on each other and your collective grief.
You can make sure that your family is not caught off guard in any of this if you can communicate to your family what your will states in advance of your death. Don’t leave it up to a lawyer or to the executor of your estate to read these items to your beneficiaries. You can take the bull by the horns and perform that task yourself. It is something that you can do well before your passing. That way your family knows what your plans are and can ask questions of you and talk to you about things. It may be that this is the first time that you have ever had a conversation like this with a family member about financial issues. Who knows what sort of impact that can have on you and your family?
Is there anything that I need to know when it comes to dividing real property?
Real property is treated the same way as personal property when it comes to the laws of Texas and property distribution for a person's estate when he or she dies without a will. The property would be split up according to the laws of intestacy. With so many possible interpretations of the law, it could be that the people who stand to inherit from you are not the people that you had in mind whatsoever. Again, having a will puts the ball in your court when it comes to determining how the property will be divided.
After reading all this- what is the best way to create a will?
I hope after reading all this you are now of the opinion that it is better to have a will than to not have a will, all other things being equal. Knowing this, if you do not yet have a will, I hope that you are motivated to get yourself one. The real question that you may be asking yourself at this moment is how do you position yourself to create a will? We’ve spent all our time talking about why you should want to have a will. The last thing I want to do is build you up with all this momentum behind you only to leave you with no information on how to use that momentum to get your will in place.
Working with an experienced attorney is the most practical, efficient, and best way for you to create your own will. This is not just an advertisement for the Law Office of Bryan Fagan. It is my sincere opinion which is based on working with clients just like you over the years who have had issues and questions related to estate planning matters over time. No two people find themselves in the same situation, but I can tell you that if you find yourself with questions regarding estate planning matters you are not alone. This is a subject matter that not only is complicated, but it offers a range of additional challenges that an attorney is uniquely suited to help you with.
For one, estate planning is not something that they teach you in school. It's not like in high school we can all look back on that estate planning teacher who was instrumental in teaching us how to set up a living trust. Didn't happen. Estate planning is sort of one of those subjects that completely gets left by the wayside many times in favor of more immediate subjects. This is understandable to an extent, at least until you start to consider just how crucial this subject matter can be for your family and other people in your life. Couple all of this with the reality that we don't know exactly how much time we have left to engage in planning matters, and you have a situation where you must be on the ball.
An attorney can help educate you on good decisions that you can make, the law, and any other subject related to estate planning. What you didn't learn in school and is not part of your daily life can end up hurting you and your loved ones when it comes to problems in your decision-making. With that said, you want to be able to learn as much as you can about this process before making decisions. When it comes to estate planning there is a cut-off time when it becomes too late for you to do anything about your estate plan once it is discovered that mistake(s) have been made.
Finally, an attorney can help you by motivating you to get off your backside and stop procrastinating. Hiring an attorney, paying an attorney money to help you, and then engaging in the planning process do a lot for a person when it comes to finally getting you to the point where you start estate planning and stop estate dreaming. Action. Nothing moves unless it is shoved. Hiring an attorney can shove you in the right direction when it comes to estate planning.
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's circumstances may be impacted by a probate or estate planning matter.