February is a month notoriously marked by love and romance. While many people are struck by cupid’s arrow, others think Valentine’s Day is just a scheme created by greeting card companies to make a buck. Regardless of your stance, there’s no denying that your loved ones deserve nothing but the best.
I’ve said it before and I’ll say it again, leaving a Will is one of the most generous and thoughtful gifts you can give. While you may not exactly want to present your Will over a candlelit dinner, this time of a year is an excellent reminder that taking care of your loved ones long after you’re gone is the ultimate gift that keeps on giving.
As a reminder, a Will is a legal document that sets forth your wishes regarding the distribution of your assets and the care of any minor children. To ensure that your wishes are carried out and your loved ones are cared for, you want a Will in writing. Simply put, a Will simplifies the process for your heirs. A properly executed Last Will and Testament assures that your property passes to the loved ones that you choose. Since a Will is a legal document, it should be prepared and reviewed by a qualified Estate Planning Attorney.
What Happens If You Die Without a Will?
When you die without a Will, an already difficult time can become a complicated legal situation for your loved ones. The term for dying without a Will is called “intestate.” Dying intestate will then trigger a chain of events that are defined in the Texas Estates Code. Intestate laws vary state by state, but they generally follow the same path to determine who the heirs will be.
We take estate planning very seriously at our firm and work hard to provide the community with thoughtful and useful legal information. That is why I want to be clear, you are not required by law to have a Will. It’s also an extremely easy task to put off. I get it, the days get busy and the years go by without the topic coming up. Many people believe you should be a member of AARP or be wealthy before you put a Will in place. But that’s just not the case. Whether you are young or old, rich or poor, you should consider creating a Will.
Most Common Reasons Texans Die Without a Will
As an estate planning attorney, I’ve heard every excuse in the book. The most common reasons Texans fail to take advantage of their ability and right to leave a Will, controlling the distribution of their assets are:
- Lack of Property: Even if you have little to no property, it still has to be dealt with after your passing. Without a Will, no one has the authority to make decisions, thus making the process more stressful for those you leave behind.
- Lack of awareness or Indifference: According to an AARP survey, 2 out of 5 Americans over the age of 45 don’t have a will. Creating a will is extremely important to take care of your loved ones.
- Complexity: Drafting a Will does not have to be complicated. Most Wills are very straightforward.
- Time and Effort: Meeting with a skilled estate planning attorney in person a couple of times may be all that is needed to put your Will into place. Follow-up calls can clear up any loose ends. In the end, the time spent is a good investment.
- Legal Fees: The cost of hiring an estate planning lawyer and ensuring you have a legally sound Will is worth it. It also can prevent family confusion and squabbles.
- Admission of Mortality: It’s hard to come to terms with the idea that you won’t be here someday, but life goes on and leaving a Will makes it easier on those you leave behind.
- Reluctance to Reveal Private Information: Any information discussed with an attorney remains confidential.
Many people are naïve about the critical importance of a Will. A Will allows you to determine who gets anything from pets to property. It also allows you to name a legal guardian for your children if they are minors.
What Happens to My Minor Children If I Don’t Leave a Will?
If you are a parent, especially of minor children, you probably prioritize being a parent as one of, if not, the most important job you have. It is your role to ensure your children are safe, healthy and loved. If you failed to put your wishes into writing before you pass, your children’s care will be as the state sees fit. This can be very stressful for your children and result in some unsettling situations where children are split up or they end up with someone whom you never would’ve chosen. The state may prioritize location, lifestyle or relationship. There is no single rule for how it could go. There are so many possible outcomes for your children if you fail to properly plan ahead for them. For that reason alone, preparing a Will is especially important.
So How Will the State of Texas Handle the Distribution of My Estate?
If you die without a Will, the State of Texas essentially creates one for you. I can’t tell you how many times I’ve heard people say “my family knows what I would want.” While I encourage open conversations about your wishes with family and loved ones, it’s not enough to ensure your wishes are carried out. If you are a resident of Texas and die without a valid Will, your property will be distributed to your heirs as determined by Texas law. Your assets will be distributed according to a statutory formula that doesn’t take into account your wishes or unique circumstances.
Let me put this into perspective with a quick fictional story about a woman we’ll call Gloria. Gloria was diagnosed with cancer and eventually became too ill to care for herself. She lived in her own home and preferred to stay there as her health worsened. Since none of her children were willing to move in and care for her, her grandson Eric stepped in. As an expression of her gratitude, Gloria promised him that he would get to keep her home and rather large savings after she passed. As Gloria was dying, her daughter drained her bank account and evicted Eric from the home. Unfortunately, she passed away without ever putting her wishes into writing. Despite making her plans clear to many people, there is nothing that can be done. In this scenario, Gloria did not have a spouse and was survived by all her children. The state determined that Gloria’s property would be divided between her children. This could have all been avoided if she had left a Will ensuring Eric would get her home and money. This story illustrates just how the State of Texas could handle a unique situation like this.
Your promises mean nothing in the real world without a clearly stated legally sound document. The law supports and gives you the freedom to decide how and to whom your assets are distributed when you die by making a Will. Without that Will, the State of Texas handles the distribution in a variety of ways.
The Deceased is Married
You would think that if you are married and die without a Will, that your spouse inherits your entire estate. That may not always be the case. The division of property at that point is dependent on whether it is
Community Property
Simply put, community property refers to most property acquired during the marriage.
- If you are survived by a spouse and children, your surviving spouse in most cases will receive the community property if all your children are also of your surviving spouse.
- Otherwise, if you have children from someone other than your surviving spouse, your children can receive your half of the community property while your spouse will only retain their own half.
Separate Property
Separate property is typically property acquired before marriage. It can also be property acquired during marriage by gift, devise, or descent. Property received by devise or descent is property received from the estate of a person who has died.
- If your property is characterized as separate and you have a surviving spouse and children, your spouse could receive 1/3 of your separate property and a life estate. A life estate is an estate limited in duration by life. In other words, they would have the right to use your separate property until his or her own death.
- If you are survived by parents and siblings, they can receive half of your half of your separate property, while the other half could go to your spouse.
- However, if you have no children or other descendants, your surviving spouse is usually entitled to all your separate property.
The Deceased is Single and Doesn’t Have Children
If you are not married and do not have children, the state looks to parents, siblings or other relatives on either side of the family to find a qualifying heir. If someone dies and leaves behind no surviving heir, the estate would go to the State of Texas.
The Deceased is Unmarried and Has Children
You may notice a trend from above. The state code prioritizes the descendants by closeness in the family tree. If you are single and have children, then in most cases all your property would go to them and their descendants. If all your descendants share the same level of relationship (meaning all are either your children or grandchildren) then they can receive equal shares. However, if the descendants have different levels of relationships (for example, if some of your children predecease you, leaving children or grandchildren of their own), then the younger generations would only be entitled to the share the older generation would have received had he or she survived.
Unique Situations and Other Questions
No two families are the same. While the state qualifies inheritance without a Will quite clearly and specifically (as seen above), there are still many alternative scenarios that come up.
What About My Stepchildren?
I have been asked many times about how stepchildren play into all of this. Let’s say you love your stepchildren like they are your own. Or you have acted as a mother or father to them nearly all their life. They will not automatically inherit from their stepparents under Texas law if you don’t create a Will. If you want to guarantee your stepchild benefits from your estate, of course, I advise you to put it into a Will.
What if the Heir Is a Non-Citizen?
According to common law, a non-citizen cannot acquire real property. Real property, also referred to as real estate, is any property attached directly to land as well as the land itself. On the other hand, if they come from friendly countries they could acquire and transmit personal property.
Does Is Matter How Big My Estate Is?
If your property and assets are less than $100,000, in many cases no formal court proceeding is required. Family members can file a Declaration of Small Estate and then are allowed to collect and split the deceased’s assets.
What Can Your Family and Loved Ones Do Now?
There are not a lot of options for your family if you die without a Will. By not leaving a Will, you inevitably cause difficulties for those you leave behind, at a time when they are likely already distressed. They will likely have to go through a lengthy legal process that involves time and money for them to help determine who will gain power over your estate. If a Will had been prepared, this process would be unnecessary.
There is no way I can address every possible outcome if there is no Will left, if you have any specific questions about your case, please don’t hesitate to contact my office.
I cannot stress the importance of creating a Will enough. I hope this article is useful for those who are dealing with a death with no Will left behind. I am also optimistic that this information will reassure anyone who is without a Will to seriously consider putting one together. This is done best with the assistance of an Estate planning lawyer to ensure you’ve taken the proper steps. I encourage you to check this crucial task off your to-do list sooner rather than later. You never know what tomorrow holds in store.
Law Offices of Debbie J. Cunningham
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