How Dying Without a Will Can Turn Into Your Loved Ones’ Worst Nightmare
The State of Texas Will Decide Who Gets Your Property
Scenario #1: If your spouse survives you, and your spouse was NOT the parent of all your children, then the State of Texas will divide your half of the community property between your children. (Texas Probate Code § 45) In many cases, this will make your grieving spouse feel like they just lost half of their property.
Scenario #2: If your spouse survives you, and your spouse was the parent of all your children, then the State of Texas will give two-thirds of your separate property to your children and only one-third to your spouse. (Texas Probate Code § 38(b)) The drafters of this law assumed that if you kept property separate during your marriage, you probably didn’t want your spouse to have it after your death. In addition, if the separate property is real estate, your spouse only owns one-third of it until he/she dies. After his/her death, it automatically goes to your children.
For Singles: If you’re not married, the law is more predictable, but it still might not be what you want. Generally, the State would give your property to your children, if any, otherwise to your parents, otherwise to your siblings, otherwise to your grandparents, otherwise to the next of kin if any, otherwise the State of Texas gets it.
Regardless of the default laws, remember that Judges rulings can be unpredictable. Don’t let the courts tell your family what to do. Instead, you tell the courts what you want them to do.
Probate Will Be More Expensive and a Big Hassle for Your Family
When their is no will and one of your family members applies to be the administrator of your estate, all your heirs need to be found and given notice of the probate proceeding. In Texas, this process requires that the estate pay for an Attorney Ad-litem to personally dig into your past relationships and make sure you don’t have any unknown children or other “heirs.” That process could obviously turn out to be embarrassing to your family if you had any skeletons in the closet.
The second hassle occurs because the administrator must get permission from all your heirs to be an Independent Administrator. An Independent Administration is usually preferred over a Dependent Administration because it is much less expensive and doesn’t require court approval for every little thing they do. However, if the heirs are in a fight or some of them don’t respond to the lawsuit, your administrator will be forced to be a Dependent Administrator. Not fun, and there goes more of the estate money down the toilet.
Your Estate Will Be More Vulnerable to Lawsuits Brought By Greedy Family Members Who Want Money That’s Not Rightfully Theirs — Defending These Lawsuits Could Take All the Money Left In Your Estate
Now, even though all heirs must receive notice of a probate proceeding when there is no will, often times these individuals may or may not be entitled to receive anything. However, when they receive a notice from the court that they are an heir, they start to see dollar signs and imagine they’ve just won a fortune.
Unfortunately, most of the time they find out their inheritance is very little or even nothing after all debts of the estate have been paid. Nevertheless, if they thought you had some modest wealth, often times their greed will get the best of them, they will assume that the administrator is hiding something from them, and they will file a lawsuit to get their “fair share.”
In many cases, lawsuits against estates are frivilous, but that doesn’t stop them from eating up thousands of dollars which would have gone to the estates true beneficiaries.
Have I said that nothing about dying without a will is “fair” yet? Well, it isn’t, and your loved ones won’t find much sympathy from the probate court judge. The judges must follow the law plain and simple. Your loved ones will only have you to blame.
Nothing can prevent lawsuits all together, but having a will helps.
If you have a will (and your not a celebrity), generally only the people named in the will find out about your estate. It’s true that your probate is on public record, but practically speaking, most people won’t go to the trouble to find it. If people don’t receive a notice from the court about your estate, they are less likely to feel entitled to a part of it.
Second, the more explicitly your will states your wishes, the less likely it is someone will argue that you wanted something different. If they do, the judge is likely to throw their lawsuit out. If a person hasn’t been named in your will, and your will has been legally proved to be valid, then that person doesn’t have a leg to stand on.
The State Will Decide Who Will Be the Guardian of Your Children
The final nightmare that could happen to your family if you die without a will concerns your children. Have you named a guardian? If you are their last parent to die and they are under 18, what will happen to them? Who will finish raising them in the way you would want?
Don’t let the State decide. It probably won’t be who you would want. One of the easiest ways to name a guardian for your children is to do it in your will.
Are You Convinced You Need a Will Yet?
I’ve tried to do my best to convince you. The reality is everyone should have a will, no matter what their current family or financial situation. If you don’t think you need a will because of your current situation, your missing the point. A will is for the future, and unless you can predict the future, it is a wonderful gift to your loved ones who might otherwise have to go through a probate nightmare after your death.