Someone has to say it: it is amazingly easy to fall into a legal quagmire when your spouse dies. It’s not your fault. Your mind will be fogged over in the days and months after the death. It would be so easy to sink into the morass and just let things just play out.
Huge mistake. Delay will make problems bigger, issues more difficult to resolve and decisions – well, let’s just say that a default decision can be a very bad decision indeed.
Common Legal Errors to Avoid:
1. Not Probating Your Spouse’s Will
Yes, the two of you were inseparable and everything was titled in both your names. But Texas is a community property state. Your spouse owned an undivided ½ of all community property, and that likely includes your home. Just because property is titled in both names, that doesn’t mean that ownership automatically passes to you. You must take affirmative action – such as probating your spouse’s will, to pass the title. Remember, a will is just a piece of paper until it is admitted to probate by a judge.
The clock is ticking on this one. You have only 4 years to probate the will. Get it over with now, because you won’t be able to refinance the house or sell it until the title is cleared.
This is especially critical if you have stepchildren. Your stepchildren will take a huge chunk of your spouse’s community property, and most of your spouse’s separate property, if the will is not probated and the estate goes by heirship.
2. Not Filing an Heirship Proceeding
Amazingly, financial institutions and title companies will not just take your word that you are your spouse’s only heir. And if you are not the only heir, then it is equally important to clarify who does inherit, for everyone’s sake.
Those same financial institutions and title companies will want an estate opened and an administrator appointed so that someone is authorized to act on behalf of your spouse’s estate. It is usually easier and less expensive to open a probate estate than to fight them about it.
3. Not Addressing Your Spouse’s Retirement Accounts
If your spouse named you as a beneficiary, then you have paperwork to fill out and decisions to make. The timing could be crucial, because you may have to pay penalties and interest if you don’t take required withdrawals.
If your spouse did not name you as a beneficiary, then you could still have a claim against a portion of the account balance for your community property interest.
4. Immediately Paying Your Spouse’s Bills
There are bills that you need to pay to keep the lights on, and then there are the other bills. Slow down and take a deep breath. If you are on the hook because it is your credit card, then fine, pay it. But otherwise, take advantage of a huge benefit that goes along with probate. Probate forces creditors – even those with existing judgments – to jump through hoops to get paid. Some won’t bother. Others may not get paid because there won’t be enough money left after deducting exempt property, spousal allowances, set-asides, taxes, and administrative expenses. Let the law work for you.
5. Not Consulting a Lawyer Immediately
Wills, trusts, theft, disposing of remains, community property, separate property, blended families, spousal set-asides, exempt property, creditor claims, taxes – death always creates legal issues. Scheduling an appointment with a probate lawyer should be done as soon as possible.
Hammerle Finley Can Help With Your Probate Needs
If you need probate assistance, schedule a consultation with one of our experienced attorneys to discuss the proper next steps.
Attorney Virginia Hammerle, of Hammerle Finley Law Firm, is in her fifth decade of law practice. She is Board Certified in Civil Trial Law and an Accredited Estate Planner. Reach her at legaltalktexas@hammerle.com. This column does not constitute legal advice.
