A will is a great tool for you to determine who ends up with what when you die. I can't put it any more clearly than this. A will is a document that names an executor whose role and obligation, under the law, is to follow your wishes and execute the terms of your will. Whether you want particular pieces of property to go to your nephew George, your local church, or a non-profit organization, a will can position you to be able to control your destiny in this regard- or at least the destiny of your property.
Having a will does not increase the likelihood of anything bad happening to you. I have had clients and potential clients talked to me about their concerns that were having a well-drafted means that they are asking for something bad to happen to them. There is no truth to this. The reality is that the longer you go in life without a will, the more you are asking for something to happen to you to take that decision out of your hands. I'm not telling you that something bad will happen to you, but I say that weird things happen. Just take a look at the past year and tell me that any of us could have seen this coming a couple of years ago.
A will is not something for rich people. A will is not something for poor people. That will is not something for people between those two groups. Rather, a will is something for every adult. I would argue that you need to have a will if you are over the age of 18. Going without a will is leaving to change your future and that of your family. Without knowing your specific circumstances, I could not tell you exactly what you are facing, and the prospects for your family or after you pass away. Of this, I know one thing: all of us will die and run from our responsibilities simply because it is uncomfortable to come face to face with this reality; it's doing everyone in your life but disservice.
The creation of a will is also important because it determines how your assets will be distributed upon your death. This is critically important if your family is extremely dysfunctional or if there are rifts between family members. You may not even be aware of the dysfunction in your family because you have become used to it or refuse to see the reality of problems within the family structure. If you do not create a will, then the state of Texas's laws on intestate distribution would force a family to realize that certain family members we'll end up with the property. In contrast, others will be kept out of the distribution.
It is completely up to you how your property is divided upon your death. You can either choose to play a role in that process and take charge of your circumstances and protect your family members and your legacy, or you can choose to let a judge you have never met and who would never have had a chance to meet you decide these issues for you. All things being equal, I would always want to have the final say-so over how my property is divided. My theory is that I have a better idea of what's best for my family than a judge in a strange court.
A will allows you to make decisions and have the final say on property division.
Undoubtedly, every family has some degree of dysfunction or circumstances that are better left for you to make decisions on than any other person. Remember that they will do not go into effect until you pass away. This means that while your family could change over time, you would be able to step in and see to it that your will is changed to fit with the times and go along with changes in your family life. As long as you are of a sound state of mind and have followed all the protocols and laws set forth by state law, your will can be altered up until the time of your passing.
For example, I have run into situations with clients who love their children dearly but do not want their grandchildren to be able to receive any property out of their estate once they pass away. Often, this is related to having grandchildren treat grandparents, but it could be for any other reason under the sun. Keep in mind that you can specify to whom your property should be distributed two upon your death by creating a will. If your grandchildren are engaging in the behavior when you draft the will you disapprove of, you can protect your grandchildren by not distributing property to them through your will.
You may be asking yourself how protecting your grandchildren is anything related to keeping them out of your will. The reality is that giving property or money to a person when they cannot control bad behavior is very dangerous. It will be like offering someone with an addiction to alcohol a drink or a drug habit money without any conditions. Enabling a person to make bad decisions for themselves is not healthy and not beneficial. If you have misgivings about loved ones inheriting property from you, then the best way to counteract this is to have a will created for yourself.
By the same token, you may be in a position where you disapprove of the lifestyle choices of your children but would prefer to allow your grandchildren to inherit property from you. Sometimes decisions made regarding marriages, divorces, or other problems in your family can lead to disharmony, and significant disagreements can occur. If you are concerned with the habits of your children but do not want to punish your grandchildren for their parent's behavior, they will is a great mechanism to put into place to protect all parties involved.
Can a grandparent make special provisions in a will for their grandchildren?
More and more often, grandparents are taking a central role in the raising of their grandchildren. Whether by providing after-school care or fully raising grandchildren, the relationship between grandparents and grandchildren cannot be understated. With that said, if you are a grandparent who has provided primary caregiving responsibilities for your grandchildren, then you may have concerns about how to divide your property in a while. Whereas you may have previously considered dividing your property evenly between your children, this may no longer be viable considering the extent to which you have built a relationship with your grandchildren and the importance of being able to provide for them after your passing.
Let's suppose that you and your husband raised your three grandchildren from when they were little until their current ages. You then decided to divide your state in 2/3 and allow each of your grandchildren to receive 1/3 of your property at your passing. If you have other children or grandchildren that you want to account for in your will, then create creative solutions in this regard.
A solution that may not work well for your family would be to disinherit a child in favor of their grandchildren. If your child is estranged from their children and your grandchildren, then this child may not think a gift is sufficient to prevent a challenge to the will. It may be wiser for you to completely disinherit a child rather than give a token gift or something of that nature. Rather, you need to prove that you intend to cut them out of the will and make it completely, so they cannot inherit property.
What about substance abuse issues?
Unfortunately, substance abuse problems seem to become more and more common across our society. Whether that substance is alcohol, drugs, or even addictions to things like pornography, we see people engaging in negative behavior to their detriment with a growing frequency. What this means for you and your family is that you need to think about how to protect your estate and your family. Remember the point I made earlier about how giving a family member money when they have an addiction is unhealthy. They give it like giving an alcoholic drink. You would want to avoid this or at least delay until that person can seek treatment and get healthy. Otherwise, it can take some time to ensure that your decisions are not inadvertently hurting someone that she would otherwise like to help.
It is not uncommon to be frustrated, angry, and at the very least upset at you're child, and at yourself for being in a position where you have to make the difficult decision about whether or not to allow for that child to inherit property from you at your passing. Most people do not want their legacy to be furthering an addiction or putting their child in a position, or some harm could befall them. As a result, your attorney will need to work with you to manage your expectations and become comfortable making decisions that could be difficult for you to discuss with your family. Sometimes it is beneficial for your family to discuss these issues before your passing so that you can avoid surprising them and causing disruptions to family life at the time of your passing.
As an attorney, I can identify trends in families with substance abuse issues that may affect how the property could be divided in a will. You may want to do everything possible to help your child with their addiction problem, but it could be that your child does not look to you for any guidance on this subject. This could be because they are so deep in their addiction that they cannot be reasoned with or because you have burned bridges with them in the past. It is important to be honest with yourself so that you can position yourself to make a positive impact on their life the best way your know-how.
You may have attempted to do everything that you would be able to provide a good upbringing for your child and show them a well-defined and loving way to live their life. Spending money on attorneys fees, therapy, medical treatment, and a list of other costs may only have increased your frustration with them. With that said, you may be looking for reasons to disinherit or leave a child out of your will. However, you may want to do so gracefully.
You should not think about yourself primarily as an enabler if that is where your mind is at the time of your drafting your will. You may have good intentions for what you have done in the past in terms of caring for your child, but circumstances well beyond your control could have harmed your ability to intercede successfully on behalf of your child. Remember that your child is not able to think rationally through these issues due to their addiction. Couple this with an inability to tell the truth and even distinguish the truth from a lie, and you have a potentially combustible situation.
What can you do if your child is in prison or jail?
It is understandable to have concerns about handling a situation involving your child if they are behind bars. You have likely run through the gamut of emotions regarding how to feel towards your child in terms of being upset, embarrassed, angry, or even extremely disappointed. However, I've also seen parents go the other direction and feel sorry for their children and easily be manipulated by them. Even when your child gets out of prison or jail, it can be a precarious position to put them in by handing over a large sum of money upon your passing. There are ways, however, for you to consider this.
First, you can create a trust for your child to prevent them from having access to the money too soon after they get out of prison or jail. This is not to say that your child will not need to access this money, but they may not be in a position to be able to make good decisions for themselves at this time. The trust will allow you to ensure that the money is kept safe for them and invested wisely. Meanwhile, they can also take steps to improve their mental health and decision-making over time.
While your child may need the money when they first get out of prison or jail, the fact is that they cannot likely be trusted with this money immediately upon their release. If my children were getting out of prison or jail, I would rather rely upon friends, family, and other programs available to them to get back on their feet in the immediate time after their release. During that time, they will have accountability measures to meet with a parole officer, outside contact, or job placement advisor to solidify their standing.
Once they have become a part of the community, shown a willingness to work, and stayed away from drugs or alcohol, the trustee would be able to release funds. While there is no magic method of keeping your child safe and circumstances like these, after all, they are an adult, and you can take steps to participate in their bad behavior actively. Funding your child when they are not in a place where that good decision can be made could be a major mistake. The last thing you want to do with your will contributes to bad actions by your child when they may not be fully capable of caring for him or herself.
These types of difficult life decisions or exactly why you need to consider hiring an attorney before drafting a will. Your lawyer will have experienced similar situations with other people and can help you determine the best course of action for you to take, considering your family dynamic.
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. How are licensed probate and 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 estate planning and probate law in Texas and learn how your family circumstances can be impacted by the filing of a probate case or the drafting of a will.