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Who Will Carry Out Your Wishes in Your Place?

One undeniable reality of life is that we will all eventually pass away. While it’s a topic many prefer to avoid, addressing the inevitability of death is crucial. When considering estate planning essentials, it’s important to confront this reality head-on. Discussing wills, estates, and other probate matters may feel uncomfortable, but preparing in advance can help you and your family avoid unexpected challenges. Acknowledging and planning for this inevitability ensures that you are ready, rather than caught off guard.

When we discuss any subject related to our mortality ultimately, we do so not for our benefit. Without a doubt, when it comes to issues impacting our lives that are related to death, these are not things that will impact us directly. However, you will likely leave behind a spouse, children, family, or at least other interests that could stand to benefit from your planning ahead when it comes to having a will and an estate plan. What I am telling you is if you do not want to plan for your passing for yourself then you should do it for your family and those who are most important to you. These folks could stand to gain a great deal by putting forth some minimal thought into how you want to structure an estate plan.

Is creating a will really that complicated or expensive?

For most people, structuring an estate plan begins and ends with a simple will. Estate planning essentials like wills do not have to be complicated. You may have been led to believe that having a will is difficult to accomplish or expensive to create. I am here to tell you that not only is this not true but relying upon this assumption can be a convenient excuse when it comes to not moving forward and performing your basic duties to prepare yourself and your family for the realities that death presents us with.

Additionally, it pays to consider why you may not have already created the will for yourself. For instance, are you concerned that by drafting a will you are increasing the likelihood of your death? This may sound funny to you at first but believe it or not, I have encountered people who feel like once they bring up the subject of a will, they are inviting something bad to happen in their lives. I can tell you that drafting a will does nothing to increase the likelihood of your passing. Sometimes all you need is to hear this to take it all in and feel more comfortable moving forward. You do not need to fear anything regarding death just because you draft a will. The less prepared you are for your passing the more concern and fear you are likely to have.

Do only rich people have wills?

Another hold-up I’ve encountered from people who haven’t yet drafted a will is the belief that only wealthy individuals need estate planning essentials like a will. You may have only seen wills portrayed in movies or TV shows, where the rich patriarch’s death leads directly to a dramatic reading in a lawyer’s office. This misconception can prevent people from understanding that estate planning is crucial for everyone, not just the wealthy.

Who will execute your will?

The lawyer then reads out the contents of the will to the surprise of the man’s family. It just so happens that the old man left his children out of the will in favor of his new and much younger spouse. While situations like this may be entertaining, they are not reality. Every person who is over the age of 18 should have a will. In other words, if you are a responsible adult then you will have a will.

The difference is that what is in your will probably be different than what is in your neighbor’s will. While it is true that everyone should have a will your will may not be as complicated as another person’s. At the very least, your will should name an executor. An executor is a person who will execute on the terms of your will. When we asked in the opening title of today’s blog post who will carry out your wishes in your place, it is the executor of your will who will fulfill this obligation. The executor must legally follow your wishes as outlined in the will.

What if the executor fails?

The failure of the executor to follow through with your wishes exactly as you laid out is not only a moral failing but also a legal violation. This is because your will designates beneficiaries—individuals, entities, or other recipients who will inherit your property after your passing. Estate planning essentials allow you to determine how your property will be distributed and under what conditions. To ensure your wishes are honored and to exercise control over the distribution of your assets, you must first take the initiative to create a will.

What happens if you don’t have a will?

The flip side of this conversation would be what happens if you pass away without a will? Based on the information I provided earlier, you likely have a basic understanding of how a will can guide the distribution of your property after your death. A will gives you significant autonomy in deciding where your property will go once you’re gone. However, now that you know this you should have another question popped into your mind. Namely: what happens if you do not have a will?

If you pass away without a will then the state laws on intestate distribution would come into play. Dying intestate simply means that you die without a will. In that case, the state of Texas would largely determine how your property will be divided. Typically, this means that your estate would need to go through probate. Probate is a legal process where a probate judge, along with the administrator appointed to your estate, handles the distribution of property and payment of creditors if you pass away without a will. Frequently it would be your spouse, your child, or another family member who would come forward to the court to begin the process of administering your estate.

Is intestate distribution sufficient?

When it comes to not having a will, one common excuse I hear is that Texas laws on intestate distribution align with what you would have chosen anyway. Does this mean that if a probate court judge were to divide up your property in a fashion that is agreeable to you while I make the effort to have a will in the first place? Isn’t it just a lot of trouble and expense to do something that a probate court judge can do on their own? The trouble with holding this position is like holding a position that in a family law case a family court judge will simply see the facts as they are and make determinations for your family in a way that is agreeable to you.

What I am trying to say is that there is no way to accurately predict what a probate court judge will do when it comes to dividing up your property. For many families and situations, the Texas Estates Code clearly outlines how property should be distributed. However, when you have multiple people in your family intervening in, you’re state administration there is no telling what a judge may decide. All the while, you have family members who could stand to benefit a great deal from receiving property through your will that must now wait for months or even years for this to occur.

Why a will benefits family

Just like we talked about at the outset of today’s blog post, you are not creating a will for yourself. While having a will does provide peace of mind to a certain extent you are creating the will to benefit the lives of your family members. You and I have no idea about the circumstances of our families and what they will look like at the time of our passing.

Even though we may feel confident that our families will be secure no matter what happens with our estate, we cannot guarantee this. Having a will positions your family to be able to act on your intentions readily so that they can set aside the administrative and financial issues of your death and focus on family and togetherness. For someone with a close family like mine, this is all the motivation I would need to have a will if I did not already have one.

What to do if you do not want your family to inherit anything from you?

Another consideration that I hear frequently from people when it comes to reasons why not to have a will is that you may not want your family to inherit property from you. The idea is that you have worked hard but have a family that either disagrees with you on various subjects or is outright hostile towards you. In that case, how can you proceed when your family’s views do not align with your own? Why should you create a will to allow them to inherit property from you if you disagree with them on many different subjects?

The first thing I would caution you on is to not allow petty grievances to get in the way of doing what is right and in the best interest of your family. While I do not know your circumstances at all I can tell you that there is a difference between petty disagreements with family members and out and out philosophical and moral differences. You should consider what type of disagreements you have with your family before making decisions about whether leaving someone out of a will serves your family well. A lot of that discussion falls in line with being able to discern what is a petty disagreement and what is a philosophical and moral disagreement.

Protecting Your Legacy and Family

For example, I would probably have a hard time leaving money to a person in my family who has a drug or alcohol addiction. Again, we do not know exactly how the lives of the people in our family will change from the time we create our will to our passing. However, it is not necessarily a wise thing to do to leave money to an addict. Reason being that you’re leaving money to an addict can directly lead to a worsening of their addiction and possibly their death. This may sound dramatic, but you do not want part of your legacy to be that you contributed to a bad outcome for a family member.

However, even in a situation where you have concerns about the lifestyle choices of your family members, there are ways to protect him or her while leaving him or her in your will. For example, you could insert language into your will that allows for your loved one to inherit property from you at your passing so long as he or she meets certain guidelines or qualifications. For example, you could require that your loved one maintain sobriety for a certain number of years or enroll in Alcoholics Anonymous before receiving property upon your passing.

Managing Your Legacy and Future

To some, this may seem rather controlling. However, you have every right to dictate how your property is divided and distributed since it involves your money and legacy. After you pass away, you lose direct control over how others will handle your property. Therefore, you should take advantage of whatever opportunities the law provides you with to both create a will and do what is best for your family.

Creating a will also allow you the opportunity to provide a path forward for your children even if they are minors. For example, you and your spouse might create mirror-image wills, ensuring that if both of you pass away simultaneously, a trust can be established to care for your children using the property from your estate until they reach adulthood. For many people, this involves having life insurance that would have your children as beneficiaries or secondary beneficiaries if you and your spouse passed away at the same time.

Using a Testamentary Trust for Your Children

Testamentary trusts are examples of estate planning essentials for individuals with children under 18. You can set up a testamentary trust within your will, naming a trustee to manage and distribute funds according to your wishes after your passing. You should consider asking someone if they are comfortable with you naming them as trustee before having the will signed in witnessed. Or financial institutions like your banker credit union may be able to step in and offer trustee services. Either way, having the proceeds of a life insurance policy or other financial investment go into a trust for your children would not be uncommon.

From there, the trustee could distribute the money for specific events, such as buying a car when your children turn 16, funding their college education, or covering wedding expenses. Once your children reach a designated age, the trust could release the remaining funds to them. While it is disheartening to think about passing away while your children are young creating a will can be the most effective way to help your children financially if you are no longer with them. It is another example of how creating a will often benefits your family rather than yourself directly. I can think of no better example of this than to provide for your minor children if tragedy happens.

Conclusion

Embracing estate planning essentials is crucial for navigating the realities of life and death. While it’s natural to shy away from discussions about mortality, preparing in advance through wills, estates, and probate matters ensures that you and your loved ones are not left unprepared. Addressing these aspects proactively helps to avoid unforeseen complications and provides peace of mind, knowing that your affairs are in order. By focusing on estate planning essentials, you can face the future with confidence, knowing you’ve taken the necessary steps to protect your legacy and support your family.

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 probate and estate planning attorneys offer free of charge consultation 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 estate planning and probate law as well as how your family circumstances may be impacted by the drafting of a will or the placing of an estate into probate.

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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with a Spring, TX Divorce Lawyer right away to protect your rights.

divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form.

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