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Celebrities who died without a will: Bob Marley

Singer and performer Bob Marley died without a will. While many of us can still recall the popular songs of Mr. Marley, what is less known is that he was a man who fathered children with many different women. To say that his home life and personal life were more complicated than the average person's would be an understatement. So, when he died of cancer it may have been a shock to those closest to him that he did not have a will. This most basic tool of estate planning was not something that Mr. Marley had completed before his passing. So, what lesson does this hold for those of us who may not be famous singers but have families and responsibilities of our own?

Most American adults do not have a will and most American adults die without a will. There are other ways to estate plan, such as through a trust, but the will is the most well-known, tried, and tested method of estate planning for Americans. Having a will helps you plan, and ensure that your property is provided for and distributed according to your goals and aspirations and can make a tremendous difference for your family after you have passed away.

One of the major reasons why many people do not take the time to draft a will is that they believe it is not necessary. I have sat with many people- single people, married people, divorced people- who will tell me that they do not need a will because of any number of reasons. They’ll say that they’re too young to have a will. I’ll be told that the person does not have a lot of money and that they do not need a will because of that. Again, if there is a reason or an excuse for not having a will, there is no doubt that I have heard it before. It’s not like these folks are lazy or unconcerned. Rather, they have a legitimate belief that they do not need to have a will.

Parents are among those whom I have met with who will consistently tell me that they plan to get a will someday, it's just that today isn't that day. This is a dangerous attitude to have. We don't know when it will be too late to get a will. Without a will, there are no guarantees about how your property will be distributed upon your passing. While a probate court judge would use the Texas Estates Code as a guide, you don't have to put your family in that position. Rather, you can take the steps necessary to create a will and give your family the peace of mind that comes with proper and complete financial planning.

Why do parents not have wills?

There are as many reasons for not having a will as there are parents. Every one of us has an excuse ready to go for why we do not do any number of things that are otherwise important. All of us can think about one or two or ten things that we ought to have done last week or that we ought to have done this morning but have been putting it off for a million different reasons. Some of those reasons are legitimate but others are simply an excuse. I hate to be so blunt, but it is what it is. We all make excuses from time to time. We all rationalize those excuses and decisions. Creating a will or the avoidance of creating a will is one such activity that we often make excuses for.

I think one of the key reasons why so many parents do not have a will is that they do not want to consider the reality of the situation and that they will not live forever. None of us like to think about our death. None of us like to consider that we will someday not be on planet Earth. That our families will go on without us, that the world will go on without us. We see other people pass away all the time. Some of those deaths have a tremendous impact on our lives, some less so. However, it is a completely different matter when we consider that we will someday pass on, as well.

So, how do we deal with these realizations? By blocking them out as best as possible and not dealing with them. Instead, we do everything possible to avoid confronting this realization. Drafting a will means not only doing the work of creating the will itself but also planning the will, thinking about how we are going to draft the document, talking to our families, talking to the person we are going to name as executor and the list goes on and on. It is a legitimate process that most of us would just rather not deal with. So, we avoid it. However, unlike avoiding our weekly yardwork, not drafting a will can have significant impacts on our families and our legacy.

There are also legitimate concerns that many parents have regarding the costs of drafting a will. If you are a parent who is paying for private school, braces, clothes, and everything else are you going to want to set aside some money to create a will? The answer may be an emphatic, "no." You can rationalize not having a will by saying that you are going to choose to spend that money on your children rather than on your will. However, this is a faulty argument given that your children are the ones who are likely to suffer the most by your failure to create a will.

In today's blog post from the Law Office of Bryan Fagan, we are going to cover some reasons why you ought to have a will, whether creating a will on your own is a good idea, and other helpful tidbits of knowledge when it comes to the world of estate planning. If you have any questions after today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. We can arrange a free-of-charge consultation with our licensed estate planning attorneys where you can ask questions and receive helpful feedback about your estate planning and will creation matter.

What are some reasons why you as a parent should have a will?

If you have minor children, you need to have a will. No, not because your property is so important to pass down to additional generations. Rather, you need to be able to have a say in who ends up caring for your children if you and your spouse pass away simultaneously. In your will, you can name a person who you would like to act as guardian for your children after you and your spouse pass on if your child is still a minor. The last thing you want is for your orphaned children's well-being to be left up to a probate court judge.

While a probate court would make the ultimate determination on who to name as guardian of your minor children, your preference will be weighed highly by the court. Without giving your preference the judge will likely go through immediate family members only and then miss out on your choice if it isn’t a sibling or parent of yours. For this reason alone, it is a good idea to have a will in place in case you pass away while your children are minors. Be sure to talk with the person that you anticipate naming as a guardian before naming him or her as guardian in your will.

Next, the property that you have accumulated throughout your life needs to be divided when you pass away. The property that you own and the debts you have to your name need to be accounted for after you pass away. This is called your estate, hence the term "estate planning." When you are estate planning you are figuring out what you want to see happen with your property after you pass away. Having a will allows you to decide what happens with your property after your passing.

When you pass away without a will, that means that a probate court judge will be the person who decides where your property ends up. No, it is not as if he or she will guess as to how best to distribute your property. The judge will utilize the Texas Estates Code to divide up your property based on the laws of intestacy. Dying intestate means that you have died without a will. If you die without a will and are married with no children, then your spouse will inherit all of your property. If you die without a will and have a spouse and children, then your property will be divided amongst them depending upon what property is community property and what property is separate property of yours.

This can be a major issue for your spouse. What if she needed to receive all your property to pay the mortgage, and bills and generally live her life? True, your children could theoretically just give to her the property that they received out of your estate but that is not exactly the most efficient way to do this. Rather, your spouse would have received all the property straight away from you had you drafted a will. It was up to you, and you did not have the will created in time. Therefore, your children and spouse have some work to do after you pass away. Not exactly the best legacy to leave your family.

The process of creating a will

Creating a will does not necessarily have to be a confusing or taxing process. You can create a will in just a few steps. This is especially true when you have a relatively small or simple estate. I would take a legal pad and draw a line down the middle. On one side of the line list all your property- cash, investments, retirement savings, your home, personal properties, vehicles, etc. On the other side of the line list all your debts- home equity line of credit, student loans, credit cards, personal loans, and the like. This is a rough outline of your estate. For many of us, this may be the first time that we have ever really figured out what our estate looks like.

We have already talked about what a guardian is for your child. This is a person whom a court will appoint to manage the affairs of your children until they are minors. You can name your preference for a guardian in your will. However, you will need to name an executor of your will, as well. The executor is the person who executes your wishes as stated in the will. He or she should be someone whom you trust, has a reasonable level of intelligence, and hopefully lives close enough to your family and property to make their job easier. I would not recommend naming a person who lives on the other side of the country as executor of your estate if most of your property and your family are here in southeast Texas.

Creating a trust within your will, known as a testamentary trust, is another method of estate planning that many parents choose to undertake. The process to create a trust is not complicated. You can state within the will that you would like a trust to be created to benefit your minor children. All property that you leave to your children in the will will be deposited into the trust. You would then name a trustee (sometimes the same person you name as the guardian) who would distribute property out of the trust. You can have all property distributed to the children in equal portions when they turn 18, graduate college, etc.

Can you create a will without the assistance of an attorney?

You can create a will on your own without the assistance of an attorney. After all, Texas was once a state on the western frontier, and it wasn't as if our ancestors had an experienced estate planning attorney on every corner to help them create a will. Rather, these folks would simply draft their own will using a pen and paper. This would not be a complex document in most cases and did not need to be because most people had relatively simple estates in those days. These handwritten wills are known as holographic wills.

A holographic will has to be in your handwriting and signed by you. Two witnesses are needed who need to physically watch you sign the will. Other than that, there aren't too many requirements for you to create a valid will in Texas beyond this. However, handwritten wills are more easily scrutinized in court. Meaning that the validity of your will may be questioned because it was created by you and not typed out. You should speak with an experienced estate planning attorney before you consider drafting your own will especially drafting a holographic will. Doing so may be perfectly legal but it may create a set of circumstances where your family has to work to establish whether or not this will is legitimate and valid.

The more complex your estate is then the more likely you are to need an attorney to help you draft your will. You can think of this process like anything else that you encounter in life. Simple things that are relatively low on the priority scale can be done without putting much thought or effort into it. For example, if I am hungry for lunch, I can zip through a drive-thru and pick up something to eat. Additionally, I can do this without giving it much thought. The reality is choosing what I have for lunch today is not the biggest or most important decision that I will ever make in my life. Therefore, I can afford to not put much thought into it.

On the other hand, estate planning matters are vitally important. These decisions will affect your family and affect your legacy. Even if you are not older or if you do not have a lot of property in your estate it pays for you to be intentional about your estate planning and to put a fair amount of thought into the creation of your will. Planning is so important when it comes to creating a will and having an experienced estate planning attorney by your side during this stage of the process can make your life so much simpler and help you to create an even better will.

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 the filing of a probate case.

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