There is a well-known saying we’ve all heard before — that is, the only thing in life that is certain is death and taxes. For most of us, the inevitability of paying taxes is something we see in the form of deductions in each paycheck. Yet, despite the other inevitable certainty, death, many people, especially young and middle aged adults, voluntarily choose to deny their own mortality and ignore the financial and legal consequences of their death on the family and loved ones they will leave behind. We seem to think we’re guaranteed longevity.
But, have you ever noticed the signs along the highways that indicate how many traffic fatalities there are in Texas each year? It’s a sobering number.
In my practice, I see a number of seniors coming in for a Will and other “final day’s” documents, such as a Directive to Physicians (often called a “Living Will”) which are helpful in the event of an irreversible, terminal medical condition. This is a good thing for seniors. But these legal instruments, especially a formal Will, would be beneficial for adults of all ages. Why? Because dying in Texas without a Will means Texas law will control and determine how your property is to be divided and passed along. There are several important disadvantages to this reality.
First, the laws of intestacy (dying without a written Will) are strictly followed and play no favorites. The distribution of the deceased’s property is determined by how closely the bloodline was between the decedent and his/her heirs. Importantly, the law does not take into account how close the relationship was between the two. Today, the family unit is quite diverse and not necessarily made up of a Father, Mother and two children like the “traditional” family was a generation or two ago. Rather, there are many unmarried, but committed couples, and even far more blended families.
Without a Will in place, unmarried couples will not inherit from one another.
Additionally, in a blended family, should you die without a Will, your spouse and biological children will inherit, but your stepchildren won’t. This can certainly have unexpected results in those families where step kids are raised with genuine love and total parental affection by the deceased step parent.
Moreover, in these same blended families, consider the problems and issues which may arise if you die without a Will setting forth your wishes. If you wanted your spouse to have all the property in order to care for him/herself and any minor children, dying without a Will may result in the surviving spouse taking only one half of the community property, only one-third of the separate personal property of the deceased, and a life estate (right to live for the remainder of the surviving spouse’s life) in one third of any separate real property. In other words, the surviving spouse will become co-owner of property with the deceased spouse’s children by a prior marriage. Maybe this won’t create any disputes or ill will between the parties. But, one can easily envision the possibility of such conflicts and other problems arising over the distribution of money and other assets. Surely, a Will that sets out the deceased’s intent would help the entire family overcome the burden of doing it alone.
So, what is the answer?
Clearly, the easiest and only logical course for dealing with the inevitability of dying is to have a written Will in place that will serve as the roadmap for your heirs and loved ones. Although it is possible to handwrite your own Will in Texas (called a holographic Will) there are potential pitfalls from a lay person doing so. These include problems from property that isn’t fully identified or fully disposed of by the terms of the Will, interpretation of the Will’s meaning itself if it contains ambiguity, and of course, issues related to the cost and powers of the desired Executor. Without the proper language, costs and delays could occur.
By far, the best solution is to hire an attorney and have a professionally prepared formal Will. An attorney can efficiently draft and present the Will for signature, and also include a special affidavit (called a self-proving affidavit) for the witnesses to sign which will allow the Probate Court to quickly and promptly admit the Will to probate, appoint the person desired by the deceased to serve as the Executor, and issue an order granting Letters’ Testamentary naming the Executor as the sole person with authority to dispose of the assets.
