What Happens to My Assets if I Don’t Have a Will?
I’m routinely asked why clients need a Last Will and Testament or what will happen to their assets if they die without one.
Here’s the reality -- dying without a Will in Texas can cause big problems, additional expenses, and delays for your loved ones.
However, while not having a Will can cause problems, the good news is that proper planning doesn’t have to be difficult and it can do wonders to protect your family’s inheritance.
A Few Things to Consider:
When you die, your property has to go somewhere…and, under Texas law, it immediately passes to someone else (in legal theory, property “always” has an owner). If you have a Will, the title to that property will transfer in accordance with your wishes.
If you die without a Will, your property will pass according to the statutory scheme found in the Texas Estates Code. The Code outlines how your property will be divided amongst your family members.
In most cases, the outline depends on whether you have a surviving spouse, children, or other living blood relations.
If You’re Single
If you’re single without children, the Texas Estates Code usually makes your parents and/or siblings the heirs of your estate. So your pets, car, retirement funds, and even your old DVD collection will most likely go to them.
If one or both parents already passed away, your property will be given to your siblings – even if you don’t have the best relationship with them.
However, if you draft a Will directing who you want to receive your assets, you can leave your most precious items with those who you love the most.
If you’re engaged
If you’re soon to be married, but die before you create a Will or say “I do”, unfortunately, your fiancé won’t receive anything from your estate.
As sad as this is, they aren’t legally considered family yet, and the courts will focus on lineal or biological family members.
This fact can be especially hard to digest if you live with your significant other and never have been formally married.
To ensure your loved one receives the assets you want them to, you have to create a Will with them included. It can be a certain item or even a percentage of things you want them to receive, the choice is yours.
If you’re married
If you’re married and die without a Will in Texas, determining how your assets are distributed becomes even more complex. How assets are distributed is based solely on whether they are classified as “community” or “separate” property.
Under Texas law, community property is every single item acquired during your marriage to your spouse. Separate property is defined by assets received prior to marriage, by gift, by device, or by bequest.
After each asset receives its classification, the Texas Estates Code determines how the asset is split.
For example: If I am married with children (one of which is from a previous relationship), my surviving spouse is only entitled to retain her 1/2 of the community property and only 1/3 of my separate property.
The remaining interest in the community property my spouse and I share is given to my children. Therefore, 2/3rds of my separate property passes only to my children while my spouse receives the remaining 1/3.
How can you avoid this?
Simple: Hire a lawyer who limits their practice solely to estate planning to draft, well, an estate plan.
Having an estate plan minimizes confusion, allows the family to grieve in peace, and can avoid the need for prolonged or expensive court involvement if set up correctly.
Getting started on an estate plan doesn’t have to be time-consuming, frustrating, or uncomfortable.
Making sure we have an estate plan in place can provide us peace-of-mind in knowing our loved ones are protected and that our wishes will be honored.
Find a lawyer you trust, who listens to what your needs are, and can give you wise counsel on the options you may want to pursue in developing the proper estate plan to fit your needs.