'If you die without a will, the State of Texas will be entitled to all your belongings...'
If you have ever heard this, know that this conclusion is generally incorrect unless you are one of the few people that has no living, locatable heirs.
If you die without a will, the laws of the State of Texas have a pre-arranged plan applied to you upon your death. This pre-arranged plan is referred to as distribution scheme and it dictates who inherits your belongings and the exact percentages of ownership they receive of those belongings.
This distribution scheme is also referred to as "intestate succession" and is mandated by the laws of the State of Texas. It can become very complicated based on the nature of your family and the type of assetsyou have.
Intestate succession is set forth by statute as a type of safety net for those who die without having a will executed. Although it is beneficial that we have this safety net it has also been known to bring unexpected or cumbersome results for people who assume that this pre-arranged plan will take care of their specific situation. They might mistakenly assume that a certain person will inherit their belongings but because of the specific type of assets they may own or their specific family make-up, this assumption can often end with surprising and undesirable results.
Even if you believe you have the simplest family situation and you think you would be fine with the distribution scheme Texas has laid out for you, it is typically more economically and emotionally beneficial for your heirs if you have a will drafted while you are alive. You have the opportunity to state your wishes before it is too late.
Additionally, you should never just assume that your spouse or life partner will succeed to your estate upon your death. This is not always the case in all marital situations and is not the case in GLBT couples. Luckily, you are reading this now and have the opportunity to make your own plan now.
Administrative Court Hassle
Therefore, if you die without a will not only will this pre-arranged distribution scheme be automatically applied to you upon your death but also, your heirs will most likely have to hire a probate attorney toadminister your estate without a will. The process of administering your estate without a will costs more in dollars than it does to have a validly executed will probate. It often leaves the door open to unanswered questions and emotional stress in having to prove who they say they are.
Opportunity to Plan Ahead
Additionally, if you die with what is considered a "taxable estate" under federal laws, your estate will be subject to the federal estate tax, levied and collected by the IRS on transfers of property made as an incident of your death.
Again, most people don't realize what actually occurs, from a legal perspective, when you die. They usually learn all the things that can go wrong once it is too late. During this planning process with your attorney, you can address these issues potentially saving your family a substantial amount of dollars and most importantly, addressing emotional issues that if left unaddressed can turn into family contention.
WHAT WILL MY FAMILY HAVE TO DO IF I DIE WITHOUT A WILL?
Who are you?
Most likely, your surviving spouse or one of your parents (if you are an unmarried adult) will have to go through a probate court process where they will have to “prove” to the Judge that they are who they say they are and that your heirs are who they say they are. Because the Judge can’t just take their word alone, it is required that witnesses be brought in to "prove-up" the facts of your personal history and family background, referred to as a “Determination of Heirship” proceeding.
How can the Judge be sure no other heirs exist?
In such cases, it is required under Texas law that the Judge also involve another attorney. What that means is that the Judge will appoint a local probate attorney to represent any “unknown heirs", whether you have any or not.
This court appointed attorney, referred to as an Attorney Ad Litem, has responsibilities under the law to confirm and/ or investigate your heirship. These are costs that the Judge will order to be paid for out of your estate. (I am often appointed as an Ad Litem on these types of cases.)
Some worst case scenarios can involve males who have fathered children from relationships out of wedlock. In such instances, if that male were to die without a will, the law may treat those persons as heirs who could inherit parts of your estate, even though you never even had a relationship with them. Additionally, other worst case scenarios can result if you have certain types of assets (one example is business assets in which a surviving spouse may have to own it with minor children from a previous marriage).
The Good Part- speak now or forever hold your peace
The beauty of the laws of the State of Texas are that Texas law allows you the opportunity to clearly state who your family and your heirs are and how you want your assets distributed at your death. Therefore, regardless of whether you believe you own substantial belongings, having a will drafted is your opportunity to address who your family is and most importantly, WHO you want to leave your stuff to (that is up to you).
WHAT WILL HAPPEN TO MY MINOR CHILDREN UPON MY DEATH?
Another Pre-Arranged Plan You Didn't Choose
Just as Texas has a pre-arranged distribution plan regarding who will have the right to your assets at your death, if you do not appropriately plan ahead, Texas also has a pre-arranged plan for your minor children in the event that you and/or your spouse (assuming they are your child's other natural parent) die or become totally incapacitated and are unable to care for them.
Who Has Priority
Every situation is different, especially when it comes to children. If you are a parent of a minor child, you should know that the laws of the State of Texas have what is often referred to as a "statutory pecking order" of who succeeds to become guardian of your minor children in the event you (and/or the child's other natural parent, who may or may not be your spouse) die or become totally incapacitated and are unable to care for them.
This statutory pecking order is still considered in terms of what is in the best interest of those minor children, if you do not state your wishes in a valid legal document before the need arises.
In case you are wondering, the statutory list, doesn't expressly state that the child's step-parent or a child's godparent is a front runner. Although I am a godparent myself, please be aware that godparent's have NO standing or right of priority to become your child's minor guardian under the laws of the State of Texas (just be virtue of them being a "godparent").
You Can Choose or the Court Can Choose For You- You Decide
If you have certain wishes regarding who you want to take care of your minor children upon your death or total incapacity, it is important that you have those wishes expressed in the proper legal document. If you do not (and you die or become totally incapacitated), the Court will decide for you.
If you are divorced or widowed with minor children, this makes it even more important to have the proper legal documents in place to protect your minor children.
If you have un-executed wishes regarding this subject, costly and emotional litigation could likely develop.
Assets For Your Minor Children
Additionally, it is equally important to address whether you have any assets that you wish to benefit your minor children, and how you would leave those assets to make sure that they are used for your child's benefit.
Most parent's of minor children never stop to think about this fact but minor children cannot legally own property.
Therefore, if you are married and you and your spouse die without a will, if you have children from the same marriage, those children will inherit you and your spouse's property. Stop and think about the fact I just mentioned. Minor children cannot legally own property. Whether your assets consist of a house, bank accounts, life insurance policies, retirement plans, no matter the value, a minor child will not be able to legally own such property. Even if you have told someone you want them to be the guardian of your minor children when you die, these financial institutions will not release funds to such guardians until they are appointed by a court or unless the proper planning is in place at your death.
You cannot afford to not plan ahead for your minor children.