What Needs to be Done When a Loved One Passes Away?

When a loved one has passed those left behind are often at a loss for how to proceed.  What needs to be done?  When must it be done?  Can I delay the process to allow time to grieve?  Following are some general guidelines to help answer these questions for residents of Texas.  Since laws vary from state to state and change over time, you will want to consult an attorney to ensure you have information relevant to your situation.

There are several questions that must be answered to determine what options exist and what proceeding is required.

  • Is there a will?
  • What type of property is owned?
  • Are there unpaid debts of the estate?
  • How much time has passed since the death of your loved one?

A standard probate proceeding may be preferred or required if there is a will, property such as a home or car is owned or debts of the estate exist.  However, it must be less than four years since the death of your loved one.  Texas allows for independent administration if the appropriate language is included in the will.  Independent executors can be appointed without the appropriate language if all of the beneficiaries agree to it.  If there is no language and no agreement then a dependent administration will be created.  The key difference between the two is the number of court appearances required.  The independent executor must only appear once where the dependent administrator must get court permission for every decision that is made.

If a will exists, real estate is owned and the only debts of the estate are a secured lien on the real estate then a muniment of title proceeding can be used.  This procedure is completed with one hearing and must be commenced within four years of the death of your loved one.  No executor or administrator is appointed because nothing is required except transfer of title to property.

If no will exists and property is owned but the estate is low in value, a small estate affidavit is a proceeding that can be used.  This requires two disinterested witnesses and all heirs join in the affidavit that is submitted to the court.  No executor or administrator is appointed.

If no will exists and property is owned or there are debts of the estate or and there is a question about who are the heirs, then a determination of heirship is the starting point.  There is no deadline for this procedure as there is with a standard probate.  The court will appoint an attorney ad litem if there are unknown heirs or heirs whose whereabouts are unknown.  If an administrator or executor is needed to handle the estate then this proceeding is filed in conjunction with one of the probate proceedings detailed above.

An affidavit of heirship can be used whether a will exists or not.  Two disintrested witnesses must swear to facts of the deceased’s life before a notary.  The affidavit is then filed in the deed records.  However, the affidavit does not become effective for five years.

In many cases, the death of a loved one will be followed by some type of legal proceedings. Some people feel a need to postpone any proceedings until some time to grieve has passed.  While others want to get the process over with so that grieving and then life can move forward.  The best way to ensure you loved ones have either option is with advanced planning.  An estate plan including a will provides the most control for those who are left behind.

The Importance of Planning When Your Loved Ones are Estranged

Everyone knows they should have a basic estate plan. Powers of Attorney grant decision making authority for incapacity and a will specifies what should happen after your passing. Many people fail to grasp the potential for complication when some of your loved ones are estranged.

Consider the case of Sally who lost her adult son, George, in a car accident. Sally was no longer married to George’s father and George had not seen his father in over a decade. George was a young man and didn’t have a will. George’s accident left his estate with a potential lawsuit that could bring a considerable settlement.

If George had a will, his probate would be simple and straight forward. The executor would have legal authority to pursue that claim. Since he didn’t have a will, there must be a heirship proceeding to establish his heirs and appoint an administrator. The first problem may be locating the father. Since George wasn’t married both of his parents must have notice of the heirship proceeding.

Once the father is located it is possible he could be appointed the administrator for his son’s estate. In addition if the only heirs are the parents, he will inherit one half of his son’s estate. I suspect George might not have wanted that outcome for his estranged father.

This can get even more tangled if George had a child. The child would inherit but if the child is a minor someone else must be the administrator of the estate. If George was not married to the mother of his child, the courts will be looking back at George’s parents for administration. Should that be the grandfather who has not been in the picture? Most people would want to choose someone else to make those decisions regarding the estate that will go to their child.

A scenario that is even less clear arises if George was living with someone or was engaged. That person will likely have no rights at all. Once again, do you think that would be George’s wishes? While it may difficult to think about and may seem very expensive to young adults. Estate planning is for everyone!

Destroy Old Documents

At document signing ceremonies, I am often asked “What should I do with my old will, power of attorney and other estate planning documents?”  My answer remains the same.  The old documents should be destroyed and you should do it right away.

Why the urgency?  If you don’t destroy them right away you may forget.  This forgotten will replaced by a newer will can turn the family upside down after a death.  While your new will should state explicitly that it replaces all previous wills, if the old will exists it can rear its head.  Leaving the old will intact allows for the argument that it is still valid.  Then the family ends up in probate court arguing over which will is the true will of the person who has passed.

A similar problem exists with copies.  You should collect all the copies you made of the previous will and destroy them as well.  In Texas, there is a process to submit a copy of will for probate.  This means, even if the original has been destroyed the copy can be submitted to the court for acceptance.

This problem can exist with any document intended to provide direction to others regarding your life or death.  So all originals and copies of wills, powers of attorney,trusts, appointment of guardian or any other document that is a part of your estate plan should be destroyed when updated by a new document.

Since these problems often arise when there is a change in the document that displaces a previous beneficiary or named decision maker.  One solution in addition to collecting all originals and copies for destruction, discuss the changes with everyone affected.  Explain the reason for the change and address any anger, resentment or hurt feelings a that time.  If you are unable to have this conversation consider leaving a letter with the document that explains the change.

Particularly with a change in a will those left behind think it is a reflection of how that person felt about his loved ones.  While this may be true, it is often just a recognition that a particular family member has a greater need or ability.  Since these cases can often lead to family rifts that are never repaired, a bit of planning can prevent destabilization of the family.  Prepare a letter or video for each of your loved ones sharing your feelings about them, hopes, dreams and happy memories.  Consider updating the letter or video every year or when there is a major change in your documentation or their lives.

The Death of an Adult Child

The loss of a child is never easy for the parents who have to bury them.  However, the pain of this loss can be compounded if the adult child does not have a will.  A will provides direction to those left behind for how all of the loose ends should be tied up.  What happens if there isn’t a will?

If there isn’t a will the state statutes direct distribution of the estate.  The statutes also dictate who has standing to file for probate.  In some situations this is adequate to deal with all of the issues.  What if the facts are not neat and clean?  What if the family is not in contact or getting along?

Recently a mother lost her unmarried adult son.  Although unmarried the son was living with his fiance.  The son’s father had been out of the picture for years. These facts muddy the water and can result in both difficulties but a distribution that is inconsistent with the wishes of the son.

The fiance in this scenario has no legal standing for probate or to receive any of the property from the estate.  If she and the son have purchased items together then she must prove the item is co-owned.  If  she can then she will retain partial ownership rights.  How smoothly this process goes will depend largely on how well she and the family (in this case the mother) get along.  The son might have wanted specific items to go to her or wanted her to inherit everything.  A will would have accomplished that goal

In this scenario the mother and father would each inherit one half of the son’s estate and have equal standing for probate.  To proceed with probate the father would have to recieve notice of the proceeding.  Since he has been out of the picture, it may be difficult, time consuming and expensive to find him for notice or appropriate use of an alternate notice method.  It is unlikely the son would have wanted the father to inherit anything.  A will would have accomplished that goal.

Frequently Asked Questions About Wills

Can I use a computer or online program to prepare a Will?

You can but this should be done with extreme caution. If the will does not dispose of all of your property, have appropriate language for an independent administration, or include a self proving affidavit, you could actually increase the cost of probating your estate. Other problems could arise from using a software program as well.

If I have a Will from another state, will that work?

Since all wills are based entirely on state law you should have an out of state will reviewed by an attorney. The will may be effective in Texas but not provide for an independent administration or have a self proving affidavit. These features make the probate process in Texas quicker and easier. Furthermore, when you are moving from a non-community property state your will may not address what is to be done with the community property you have acquired in Texas.

Can I hand-write my Will?

Yes, you can hand-write your will. It must be all in your handwriting, dated and signed. This is certainly preferable to no will but may not address all the issues necessary to smoothly probate your estate.

How often do I need to change my Will?

You should review your will every 3-5 years or when there is a major life change. Major life changes such as births, deaths, marriages and divorces may result in a desire to change the terms of your will. After reviewing the will if all the terms are still an accurate reflection of your desires and no on named in the will has passed away then there is no need to make a change.

Wills are Critical for People in a Second Marriage

Betty and George had been happily married for 15 years when he became ill.  She stood by him as the illness progressed and eventually claimed his life.  They did not have any children together but George had a son and daughter from his first marriage.  Betty and her step children were friendly but not close.

George died without a will.  He and Betty had lived a modest life and he felt there was not enough there to worry about.  However, that is not the way things turned out.  George’s children wanted all the family heirlooms and anything else the law entitled them to receive.  They hired a lawyer and demanded Betty turn over their inheritance.

The Texas statutes addressing inheritance state that if the children of the person who has died are not all also the children of the surviving spouse then the community property does not go to the surviving spouse.  The surviving spouse retains their half of the community property but the community property of the person who died is divided between the children.  In this case, George’s children will each get half of his community property or one fourth of George and Betty’s community property.

The difficulty often arises in how to divide the assets.  The children are entitled to one half of the value of the assets but they cannot prevent Betty from remaining in the house or force her to sell the house.  In your typical case you create an inventory of the assets and assess a value.  This value is then divided in half to determine how much the surviving spouse can retain and what goes to the children.

In George and Betty’s case they owned a home, 2 cars, household furnishings, they each had an IRA and a modest checking and savings account.  Betty will sell one of the cars, give them the family heirlooms and each child will own a small portion of the home. If Betty decides to sell the home the children will collect according to their ownership share at the time of the sale. Otherwise they will collect when Betty dies and her estate is distributed.

If George had a will he could have prevented this family discord.  He could have given his share of the community property to whomever he chose.  This would at the very least have prevented the legal battle.

What is a Probate Proceeding?

When a loved one has passed those left behind are often at a loss for how to proceed.  What needs to be done?  When must it be done?  Can I delay the process to allow time to grieve?  Following are some general guidelines to help answer these questions for residents of Texas.  Since laws vary from state to state and change over time, you will want to consult an attorney to ensure you have information relevant to your situation.

There are several questions that must be answered to determine what options exist and what proceeding is required.

  • Is there a will?
  • What type of property is owned?
  • Are there unpaid debts of the estate?
  • How much time has passed since the death of your loved one?

A standard probate proceeding may be preferred or required if there is a will, property such as a home or car is owned or debts of the estate exist.  However, it must be less than four years since the death of your loved one.  Texas allows for independent administration if the appropriate language is included in the will.  Independent executors can be appointed without the appropriate language if all of the beneficiaries agree to it.  If there is no language and no agreement then a dependent administration will be created.  The key difference between the two is the number of court appearances required.  The independent executor must only appear once where the dependent administrator must get court permission for every decision that is made.

If a will exists, real estate is owned and the only debts of the estate are a secured lien on the real estate then a muniment of title proceeding can be used.  This procedure is completed with one hearing and must be commenced within four years of the death of your loved one.  No executor or administrator is appointed because nothing is required except transfer of title to property.

If no will exists and property is owned but the estate is low in value, a small estate affidavit is a proceeding that can be used.  This requires two disinterested witnesses and all heirs join in the affidavit that is submitted to the court.  No executor or administrator is appointed.

If no will exists and property is owned or there are debts of the estate or and there is a question about who are the heirs, then a determination of heirship is the starting point.  There is no deadline for this procedure as there is with a standard probate.  The court will appoint an attorney ad litem if there are unknown heirs or heirs whose whereabouts are unknown.  If an administrator or executor is needed to handle the estate then this proceeding is filed in conjunction with one of the probate proceedings detailed above.

An affidavit of heirship can be used whether a will exists or not.  Two disintrested witnesses must swear to facts of the deceased’s life before a notary.  The affidavit is then filed in the deed records.  However, the affidavit does not become effective for five years.

In many cases, the death of a loved one will be followed by some type of legal proceedings. Some people feel a need to postpone any proceedings until some time to grieve has passed.  While others want to get the process over with so that grieving and then life can move forward.  The best way to ensure you loved ones have either option is with advanced planning.  An estate plan including a will provides the most control for those who are left behind.

What Happens in a Property Transfer?

The death of a loved one can bring a great deal of stress and confusion into the survivor’s life.  What is to be done with the home, furnishings, financial accounts and pets?  Who is responsible and how does it get done?

When someone dies any property owned must be transferred to a new owner.  This transfer takes a variety of forms and which form depends in part on what the deceased owned.  Some property can be transferred with beneficiary statements.  While others require some legal step for the transfer to be complete.

When determining what proceedings are required the first question to ask is “Did the deceased have a will?”.  A will acts as the instruction manual for how the property owned at death should be transferred.  If there is no will, then the probate code provides the instruction manual.

The inquiry does not end here but returns to what type of property was owned.  If they own real estate, vehicles or other titled property, a legal proceeding will be required.  This may require a formal probate proceeding in the court or just an affidavit.  A probate lawyer can provide the necessary guidance as to which steps are required.

If they had financial or retirement accounts then beneficiary statements may be adequate.  Certain assets can be transferred with beneficiary statements and pass outside of the instructions of the will or the probate code.  Financial accounts are the most common asset to transfer this way.  When anyone opens a checking account, brokerage account, or IRA a beneficiary statement is completed directing that institution to pay the balance to a specific individual upon proof of death.  401ks and other retirement plans also require a beneficiary statement and can pass outside of the probate process.

To make the probate process as simple and smooth as possible for those you leave behind create an estate plan.  Review your will and powers of attorney periodically to ensure they still reflect your wishes.  Consult your financial institutions to check your beneficiary statements from time to time to ensure they still reflect your wishes.

Planning for Non-Traditional Families

While the need for proper estate planning is the same for both traditional and non-traditional families, some of the planning techniques used are different.  Same sex couples are not treated the same as traditional married couples for many purposes and while these differences in treatment present challenges, they are not insurmountable with proper planning.

Same sex couples, just like opposite sex couples, must have the four key documents.  The four documents include a will, a medical power of attorney, a durable power of attorney and a living will.  These documents are the foundation of any estate plan, whether for traditional or non-traditional families.

Non-traditional families must pay special attention to several key areas.  Who will make decisions for you if you are unable?  What are the tax implications of transfers now and at death?  When can beneficiary statements solve the problem?  Each of these questions is touched on below and will be covered in depth in a future blog post.

What can same sex or unmarried couples do if they want their partners, instead of their biological relatives, to make decisions on their behalf? This question frequently arises during medical emergencies.  Preparing before the emergency strikes will arm your partner or the person of your choosing with the tools necessary to ensure your wishes are honored.  A variety of planning techniques are available to meet the needs of your family.

Same sex and unmarried couples are treated differently for tax purposes.  They are not eligible for the marital deduction at the death of their partner.  They have no community property rights.  There is no tax protection for property transfers during life between partners.  There are planning tools available to help overcome these hurdles.

Finally, the importance of beneficiary designations cannot be stressed enough.  Properly completed beneficiary statements in various financial documents, including life insurance policies and retirement plans can aid in property transfer at death.  Beneficiary designations are critical and should be considered in conjunction with the entire estate plan.

Same sex and unmarried couples need to work with an attorney to develop an estate plan that anticipates challenges and delivers the intended results: to honor their relationship with their partner, ensure their partner can make decisions on their behalf if necessary, and to designate their intended beneficiaries.

Estate Planning for Pets

In some households pets are key members of the family and any estate plan that doesn’t address their needs would be found incomplete.  An important first step in this process is to discuss your desires with the person you wish to care for your animals after you are gone.  There are several questions you should ask yourself and discuss with the potential caregiver.

  • Will you care for my pets?
  • Is there a limit on the number or type of pets you will care for?
  • Can you manage the additional expense of the pet?

The simplest solution is to include a bequest in your will.  This allows you to leave your pet to another person you know will love and care for them after you are gone.  If you have a variety of pets you can leave their care to various individuals.  Leave the dogs to the dog lover and the reptile to the reptile lover.  If it is merely overwhelming in quantity then having discussed how many animals each person feels they can handle is the key to success.  If you wish the bequest can include a gift of money to help care for the animals.

You can create a pet trust during life or in your will.  You leave your pet and certain funds or property for the care of your pet to a “trustee”.  The trustee is responsible for the care of your pet.  In some cases the trustee manages the financial aspects while a different person is the actual animal caretaker.  A pet trust gives you a great deal of power by allowing you to specify exactly how your pet should be cared for in your absence.

There are a number of programs in place to care for pets after their owners have passed away.  Texas A & M University has the Stevenson Companion Animal Life-Care Center where pets are cared for in a home like environment.  All programs require a donation based on a variety of factors.

You should always have contingent plans for the care of your animals.  The person you have named may be willing but unable to care for your pet when the need arises.  The programs you have selected might no longer be in existence.  Be sure to select alternate caretakers to name in your will or trust documents.  This planning will ensure your pets are cared for in the manner you choose.