Why Do I Need a Will in Texas?
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They knew it was coming but it still didn’t make things any easier. Lisa put down her phone and placed her head in her hands, grief washing over her in waves. Her mother had finally succumbed to the breast cancer she had been fighting after five long years. Her mother wasn’t particularly old. She had just turned fifty-five, but throughout those years, she had been a force to be reckoned with. A thriving Italian restaurant, a large white-brick home built on her family’s 15-acre property, and three kids were her legacy.
Lisa and her siblings faced the impossible task of arranging their mother’s funeral. However, as they were discussing the details, her younger brother brought up the question they had all been avoiding. What was going to happen to her property? Did their mother have a will?
Only 32% of Americans have a valid will. Writing a will is not something that many individuals think about during their day-to-day lives. However, making sure you have a will and keeping your estate organized is extremely beneficial to your loved ones, as it makes the process of distributing property a lot easier after your passing. Here is what you need to know about what happens if you pass without a will and why you need one in Texas.
What Is a Will?
A will is a legal document that outlines what your wishes are for your property when you pass. This includes information about who will carry out the will and how your property will be distributed to any beneficiaries.
What Happens If I Die Without a Will?
If an individual passes away without having a written will, then they will not be able to decide who will inherit their estate. Instead, the estate will be divided according to Texas law. This means that the individual’s siblings or grandchildren will not inherit anything. In addition, the individuals who would be receiving the estate after their loved one passes will be in a grueling waiting cycle. The estate could be tied up in a lengthy probate process, which involves an appointed attorney, filing fees, and a court hearing. All of this will be paid for by funds taken from the estate.
However, if an individual does have a will, then what happens to the estate would be already decided. The executor (the person chosen to see that the will is carried out), will see that the property is distributed as the will states.
Will My Property Automatically Pass to My Spouse If I am Married?
No. Without a will, an individual’s estate will be divided by state law, depending on how the property is classified, either separate or community property.
Community property is a term that describes all the property acquired by both spouses during the marriage. This includes the following:
- Cash
- Bank accounts
- Retirement
- Personal property
- Real estate
Separate property is a term used to describe property owned by one spouse before the marriage or acquired during the marriage to one of the spouses as a gift, inheritance, or through a personal injury settlement.
When a spouse dies, the surviving spouse may find that the estate is divided as follows:
- Community Property
- When all of the children are children of the surviving spouse, then the surviving spouse will get all of the property.
- When there are children who exist outside of the marriage, then the surviving spouse will get half of the community property and the children of the deceased will equally split the second half.
- When there are no children in the marriage or outside of it, the existing spouse will get all of the community property.
- Separate Property
- If personal property is owned before the marriage or acquired as a gift or inheritance then a third of it will go to the surviving spouse while the rest will go to the children who will split it equally.
- If real estate is owned before the marriage or acquired through a gift or inheritance then a third of the life estate will go to the surviving spouse and another third will go to the surviving children who will share it equally.
What About My Children? Will My Children Get My Estate If I Die and Am Not Married?
Yes. If an individual passes and they are not married, then the children will share equally in the estate left behind. Community property only applies when there is a surviving spouse. However, some individuals want their child who is not as better off financially to inherit more than the financially stable one. A will is needed to ensure this outcome.
Grandchildren who have a grandparent who passes without a will will not inherit anything, (unless their parent had passed previously, then it will be split among that grandchildren equally).
What Happens to My Estate If I Pass and I am Not Married or Have Kids?
If both parents are alive, then each parent of the deceased will get half of the estate after their child passes. If both parents are no longer living, then the estate will be split among the surviving siblings equally. If one parent is alive, then that parent will get half and the rest will be divided equally among any surviving siblings. If the individual doesn’t have siblings or their siblings are no longer alive, then the one surviving parent will inherit everything.
Who Will Care For My Minor Children If I Pass?
If an individual passes and they have children who are minors, then the other surviving parent will have parental rights as long as their parental rights have not been terminated.
If the other parent has passed (or they passed at the same time), then the children will go to the surviving grandparents. However, the court may decide which set of grandparents will be guardians.
The Importance of Having a Will in Texas
A will is an essential legal document that protects your loved ones after you are gone. It allows you and not the state to govern who gets your property. Without it, your family will need to go to court to determine who inherits your estate, and this process, as mentioned earlier, can be pricey.
You will want to ensure that you have a will if any of the following is true about your situation:
- You have real estate or personal property that you want to go to specific individuals.
- You want to control who settles your affairs after you pass.
- You want to choose a particular percentage of your property that will go to certain individuals.
- You have children who were not born to or adopted by you and your current spouse and you would like them to receive something.
- You have created a trust which is to be partly or fully funded when you pass.
- You have an heir or want to name a beneficiary who lives in a state or country that has an inheritance tax.
- You have real estate outside of Texas.
- You want to avoid putting your family through the grueling probate process and save them from the expense of submitting an application for determination of heirship.
How Do I Get Started With a Will?
To ensure your will is legally recognized, you will want to make a will using an experienced estate planning attorney. They specialize in creating wills that abide by the laws of state’s laws, meaning that they will know what the current codes are and what requirements will be needed to make your will valid.
Protect Your Family By Investing in Estate Planning
Alison Grant, Attorney at Law is Lewisville, Texas, and the surrounding areas, most trusted resource when it comes to estate planning. She has helped countless individuals get their affairs in order, ensuring that the transition after they are gone is as smooth as possible for their surviving loved ones. Contact us today for more information on our services or to schedule a consultation.
