Not long ago, I published Part 1 of this Article in which I discussed the State of Texas’s rules for how your property is divided if you die without a will.
For many people, that division is far from what they want done with their own assets and possessions. It also causes sticky joint management issues between children from prior relationships (or their parent/the ex-spouse), and current spouses. That thought should be enough to spur some people into action to draft their own wills.
If you are in the group of people who are still married to their first spouse, neither of you have children from a prior relationship, and you have no separate property (in other words, no property owned before marriage or received from an inheritance or personal injury settlement), you are fast becoming the minority. You may be happy with Texas’s distribution of all of your property to your spouse.
However, there are still strong reasons for you to make a will.
If you have no will, you likely have no designation of guardian for your minor children. Most people include this selection in their wills, for the unfortunate circumstance in which both parents die together. If you are a widow or widower with minor children, this is even more important. You may not want to think about this, or you may have no idea whom you would select, but be assured that the court will find someone for you.
And without your input, your children may be placed with an aunt or uncle who has some very different parenting philosophies, or who would require the children to relocate far from their friends and support system.
Even without a will, the courts will still need to divide and pass your property to your spouse and family. But instead of a short and easy probate with a properly-drafted will, your spouse or other representative will go through an Heirship Proceeding. In an Heirship Proceeding, an extra attorney is appointed to represent “unknown” heirs and to make an inquiry into your family history.
Notices of the proceeding must be sent to all possible heirs. Two witnesses outside of your family will be required to appear in court and testify as to the identities of your children, your parents, and your siblings. All of this means extra time, extra expense, and the delay of your spouse actually getting control of your half of the marital assets.
If you have no will, you have no say on how your children should receive their inheritance.
Children cannot inherit until they are 18 years old, so your Ex may be in charge of their money until then. Or, their money may be deposited with the court until the kids reach 18, in which case it would be more difficult to access in case of need. And we all know that 18-year-olds are not necessarily responsible stewards of large deposits of money.
A trust is almost always a better solution for any young person coming into a chunk of change. Without these instructions, a will, that money meant for your kids’ college education may be blown on a hot red Lamborghini.