Most people have a general idea that they “should” have a Will, but do they really understand what happens if they don’t?
One of the biggest difficulties that can arise when someone dies without a Will is that the State of Texas decides who gets your “stuff.” This may or may not be where you actually want your property to go. If someone dies married, and there are no children from a previous relationship, and they own no separate property from before they were married, then all their property will go to the surviving spouse. But that’s where the simplicity ends.
If someone dies with separate property land, say, a home they owned before marriage, then their children get that property. If that home is the family home, how would you feel to have your children now own it? What if the deceased spouse had children from a previous marriage? Your children are now sharing the ownership of the family home with your late spouse’s previous children. And you, the surviving spouse, get to use and enjoy only 1/3 of that home during your lifetime.
How do you divide the property and determine the 1/3 you can use? We let the courts decide. Yikes.
What if the deceased spouse’s separate property is not land, but is instead personal property (cars, bank accounts, or other things owned before marriage, or inherited)? According to the State of Texas, the kids get 2/3. The surviving spouse only gets 1/3 ownership of things that he or she may have come to rely upon in daily life or may need to pay for living expenses.
But the fun doesn’t stop there. Even if the deceased person owned nothing but community property, meaning everything they owned was purchased or earned during marriage, the result still isn’t good if there are kids from a prior relationship. Suddenly, a full half of everything the surviving spouse enjoyed before their spouse’s death is swept out from under them. The survivor owns ½ of his or her home, ½ of his or her taxable investments, ½ of the cars or boats or other vehicles. Who owns the other half? Those kids from the previous marriage. The surviving spouse can’t sell the property if she needs money for living expenses. She can’t get a reverse mortgage or refinance her home without the previous kids. And the surviving spouse and previous children must work together to pay expenses, taxes, insurance, and other costs of ownership.
Sound fun? Now consider if the previous kids are minors, and the surviving spouse has to coordinate ownership and use of the property with the former spouse of her late husband.
Sounds complicated, to say the least.
Essentially, the Texas legislature has made a Will for you. In all the combined years of experience of the estate planners in our office, no client has ever asked for anything like Texas’s Wills. Make your own Will.
