A subject that almost nobody willingly thinks about but is nonetheless extremely important is state planning. Specifically, how do you plan your estate if in a win then fortunate occurs and you die suddenly? If you are a married person the same question can be asked regarding your wife or husband is suffering the same fate as you. If you all have children then the discussion needs to be had that much more. While nobody wants to think about children are having to live a life without their parents the alternative is to not be prepared for this sort of eventuality. While the odds are good that you will not leave your children behind without parents at least before they reach the age of 18, this is not something that you want to leave to chance. No matter how comfortable you are playing the percentages, there is a difference between betting the odds in a friendly wager over sports versus doing so with the well-being of your children.
So much of this discussion is regarding issues that we cannot control. For instance, none of us can control the exact moment that we passed away. We cannot control the circumstances that surround the moment, our mindsets at that moment, and even how our families react to it. While we would like to think that the decisions we make as parents will always be followed through upon, we can't even guarantee that our families in especially the state will be able to make the best decisions for our children after we pass away. It's not that I want to make you lose sleep at night, but as a parent of three young children myself, this is the reality for people in our shoes.
This is the backdrop and the motivation for the blog post that I wanted to write today. State planning and probate matters are rarely the most exciting and hardly ever the most thought-provoking. However, I do believe that some of the most important decisions that you will make regarding your life center around well you are going to take care of yourself and what you can do to control how your children are provided for if the unthinkable happens to you and your spouse. With so much being out of your control out of my control regarding our children if something unfortunate were to happen to us what degree of power or influence can we have on their lives even after we are gone?
A lawyer's favorite answer to any question asked of him or she is it depends. That response is especially appropriate in this type of situation. For instance, if you and your spouse were to pass away if all of your children were over the age of 18 then there would not be much in the way of control that you could have on how your children handle finances that come out of your estate. After all, the intestate laws in Texas determine what property your children could end up with and would further provide for the amount of which each child receives.
However, bear in mind that the law in Texas cannot then control how your children spend their money as adults. If they were to inherit money from you after your passing as adults any probate court would sign off on the distribution of properties, payment of debts, and all other matters related to your estate. What the court would not be able to do is follow around your adult children to ensure that they are using the money wisely or even doing something that you would approve of. That goes well beyond their abilities as a part of the state of Texas.
Think about that for a moment: even if your children have the best of intentions they may still not utilize the resources gained from your estate in an efficient, predictable, or even sound manner. This isn't just to say that you want to be able to control every movement of your child, especially if he or she is an adult, but the reality is that in circumstances where you do not have a will there is not much you can do to protect your assets or even your adult children from making mistakes regarding their use of those assets. The best you can hope for is 2 trust your children to make good decisions with the money provided to them in probate proceedings.
Of course, there is an alternative to this discussion period rather than hoping that everything turns out the way you want it to be were you to pass away suddenly, you can take steps to ensure that your children are provided for in that year a state is dissolved as you see fit. Unlike many prescriptions written by lawyers and judges, the truth of the matter is that you don't even have to spend a lot of money or go through a lot of time and effort to make this concept of reality. Rather, all it takes is a little bit of forethought and a decent amount of planning.
Of course, I am talking about having a wheel drafted for yourself and for your spouse that ensures your children will be provided for after you all pass away. Creating mirror image wheels with your spouse means that both of your wills are identical and contain identical provisions for what would happen if both of you were to pass away at the same time. This covers unfortunate circumstances involving accidents and other events that could lead to your passing. In that case, especially if your children are still minors, your will would be able to dictate what becomes of your property about your children after your passing.
This stands in stark contrast to a situation where you were to pass away without a will. Dying without a will does not necessarily mean that bad things will happen to your family or your estate. The laws on interstate distribution of property are straightforward to an extent and based on centuries of legal precedent. The state of Texas does not want to interfere in your personal life anymore than is necessary. However, bypassing away without a will you are forcing the state of Texas is hand in administering her state and seeing to it that your property is distributed in a way that accords with state law.
To state things as clearly as possible, drafting up a will is not necessarily pleasant but that is basically what it means to be apparent. If you think about it, there is a great deal of life as a parent that is not exactly the most fun or the most pleasant to deal with. Every parent reading this blog post right now can think of a list of items that are among their least favorite things to deal with as a parent. From changing diapers 2 disciplining her child for bad behavior or having to talk to your child about the many issues related to growing up in this world of ours, parenting is not all Peach is in the sunshine.
However, we understand that being an adult and being a parent is not necessarily going to always be the most pleasant experience in the world. As a result, we throw our shoulders back and do what is necessary not necessarily for ourselves but for those around us. If you think about it, the drafting of a will is the ultimate example of what I am talking about. It is the height of nobility to do something that is not necessarily pleasant and that will never benefit you directly. This is what drafting a will is. There is no instant gratification in this subject but it is nonetheless important. I think important is an understatement.
Now, the key to this entire discussion is getting the drafting of a will off the ground and running. In preparing to draft a will it is helpful to think about what your goals are for your family and what role you would like your state to play in the lives of those around you in your family. We all understand that the composition and circumstances of families change, sometimes dramatically, overtime period however, it is your job to take what you have built within your estate and attempt to remove any doubt as to what will happen with your state and your assets after your passing.
In my opinion, the best way to position yourself in this regard is to hire an experienced estate planning attorney to plan for, draft, and alternately obtain a valid and enforceable will. Getting information onto a piece of paper for your relatives to view after your passing is only part of the battle. The other part centers around having a will that meets the criteria for enforcing ability and validity in Texas. There are so many ways to challenge their will that 2 go into the drafting process without an experienced set of eyes looking at the document is a tremendous risk. With that said, having an attorney by your side gives you the best possible chance at avoiding potential challengers in a probate court setting.
Unfortunately, the reality of probate orestate planning scenario is that you may have a relative or two who attempts to challenge the validity of your will. Whether they try to argue that you were not of a sound state of mind at the time the wheel was created, or they attempt to argue that you were fraudulently induced into stating certain things in the wheel, you may not be able to prevent every challenge from every person with ulterior motive when it comes to challenging what you want to do with your property. However, working with an experienced probate and estate planning attorney during this process can eliminate many risks that you may be unaware of when it comes to drafting your will.
This process can simply begin with your meeting with a handful have of state planning attorneys. I would recommend reaching out to our office for a free-of-charge consultation. A consultation can be had over the phone, via video, or in person. Getting to know our lawyers, what we strive to provide for all clients and an opportunity to learn how your family circumstances may be impacted by a probate or estate planning matter are all vitally important in this process. Do not take for granted how crucial it can be for you to have a strong relationship with your attorney during the drafting of a will.
As much as we may worry about what may become of our property in our family history passed away, then experience probate in estate planning attorney knows better than anyone what can happen in the invent that You do not plan and think through scenarios involving wife and death. This does not mean you have to dwell on these subjects but choosing not to consider them to live a more carefree life is not responsible at all. Sometimes talking with family members about electricity people in your life can be all the incentive you need to become comfortable enough to move forward with this process. Building up a level of trust with an attorney can be the final step in putting yourself and your family in good positions to do what it takes to care for your children if the unfortunate should happen to you and your spouse.
What does your child stand to receive out of your estate once you pass away?
Whether your children are your biological children or are adopted, they stand to receive the same rides to inherit property. The same is even true if you adopted an adult child. Unmarried people have no Community property. If you are an unmarried person and pass away without a will then all of your property will be considered to be separate property by a Texas probate court. In this case, all of your property would go to your kids.
For this blog post section, we are going to write as if you passed away without a will. We have already spent a great deal of time discussing why it is important for you to have a will. I did that on purpose to preface what I am about to talk to you about. Simply put, you should not put yourself in a position to pass away without a will. It doesn't matter how old you are or how much property you have period dying without a will could potentially because your property to be awarded to people that you would prefer not to have anywhere close to the rights that they would be given by a probate court.
For instance, if you pass away without a will and have a spouse and children who survive you then it will be important to think about whether you are children were born out of your relationship with your spouse. If so, then your share the Community property will go directly to your spouse. All real estate would also go to your spouse with a life estate and then would go to your kids. Finally, 1/3 of your separate personal property would go to your spouse with the remaining 2/3 going to your children.
Somewhat different circumstances would play out if you pass away without a will, a spouse, and children who are not from your relationship with your spouse. In that case, your share of the Community property we go to your kids. This puts your children and your spouse in a position where they would potentially own property together. This can be awkward for children who may have no relationship with their spouse or may even have an adverse aerial relationship. 2/3 of your separate property would go to your children and then the remaining portion of your separate property will go to your spouse. Again, a life estate in real property would be distributed to your spouse and then would go to your children after your spouse passes away.
This is a lot to go over in a relatively short period. With that said, it is important to learn the basics of intestate distribution for Texas families. You can learn quite a bit about your family and your circumstances by speaking with an experienced state planning and probate attorney.
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'sblog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning and probate 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 but also about how your family circumstances may be impacted by the filing of a probate case in Texas.