Do You Need a Will? Here's Five Reasons Why You Do.
Planning for the worst can save a great deal of added heartache for your loved ones. It is almost always advisable to have a Will and speak to an attorney regarding your desired plan. Don’t let assumptions and misconceptions about dying without a Will keep you from getting your affairs in order.
Knowing Where Your Estate Will Go.If you die without a Will, the state of Texas will give you one by default -- this is called dying "intestate." You may be surprised to learn what the Texas default is on how your Estate should be divided between your family. For instance, it's a commonly held belief among married couples in particular that living in a "community property" state means on your death, all your property will go to a spouse. That's true less often than you would think.
In Texas, if you and your spouse have different children, your or your spouse's community property may pass to children by a prior marriage. Even if you and your spouse have the same children, a fraction of your separate property (acquired prior to marriage or by gift, devise, or bequest) will go to your children. You may love your children, but few people really want their spouse and children to co-own property after death.
Having a Will means trumping the laws of intestacy and knowing for certain where and to who your assets will go.
Making the Transition Easier on Your Family -- Probate.Even if you like the Texas default for how your estate is split, the next question to ask is how does property get transferred after your death? If there is a need for administration of your estate, this will typically mean court involvement and the process of "probate." The goal of probate is generally to have someone appointed as an Executor or Administrator so someone can call the shots and move property where it should go.
Even if you know who your heirs-at-law are, the court does not. If you die without a Will and someone needs to be appointed as Administrator of your Estate, the court will first need to make a determination of who your heirs are. This means a court-appointed attorney will be assigned to investigate your marital and family history, and typically requires live testimony from witnesses outside of your family -- even if your heir is one child. All of these legal costs are borne by your estate and consequently your loved ones.
A Will is just a set of papers until a court rules that it is your last will and testament. Similarly, your Executor is not an Executor until a judge appoints them to the position. However, a well-drafted Will can be admitted to probate after one 5-10 minute hearing with only minimal testimony from the Executor you choose. The cost of making a Will today will save your loved ones much more time, money, and stress than you would expect. Don't make attorneys the beneficiaries of your estate any more than you have to.
Creating Unique Protections for Your Loved Ones.Without a Will, your property will go to your heirs outright with no special protections. What happens next is anyone's guess. Your hard-earned assets end up in the hands of second spouse or your heir's creditors. Additionally, if property is going to someone who is a minor or incapacitated this can mean going through the added expense and potential fight that comes with court-created Guardianship.
Making a Will gives you a number of options including creating a "testamentary trust" for your beneficiaries. A testamentary trust can provide for generations of beneficiaries, keeping assets in your bloodline and for your descendants as long as the trust has sufficient assets. A trust created by you for a beneficiary generally cannot be divided in the event of a divorce with a future spouse (or a future ex-spouse of a child) or seized by creditors. Trusts can be asset protected with minimal strings and restrictions for a beneficiary who is capable of managing their own trust as trustee. Inversely, a trust can be strictly structured to protect against immature beneficiaries who may need some protection from themselves. Even more, you may want to consider a "Special Needs Trust" to provide for a beneficiary receiving government or public assistance such as Medicaid without disqualifying them by virtue of their inheritance.
Divorce and creditor protection is not as easy to create for yourself as it is to create for someone else. Having a Will affords the opportunity to create protection for your beneficiaries and adds confidence that your estate will be expended the way you want even after your death.
It's Not All about Property!In some situations, probate can be avoided entirely where all your assets pass "non-probate" such as by beneficiary designations on financial accounts and insurance. Even with a Will, it can be a good idea to try and avoid probate entirely through use of non-probate designations and devices. Sometimes however, a Will may need to be probated for reasons besides transferring assets or handling debts.
If you have minor children, a Will typically names guardians for your children in the event they are orphaned. Without a binding designation by parents, many different family members will all have the same legal footing to claim guardianship of your children. Even if every member of your family is trustworthy, designating a guardian for children removes the guesswork and likely fighting over children.
If your death comes as a result of some wrongful death caused by another, the Executor or Administrator of your Estate is the person with authority to pursue a lawsuit on behalf of your Estate. Even with all your assets passing non-probate, there may the need for someone to step in. Making probate the least of your Executor's worries goes a long way.
Do It Yourself at Your Own Peril.Making a Will in Texas requires a good deal of legal formality and ceremony. While many forms are available online for a Will, very few are tailored to Texas law. Use of these Will forms opens you to a number of pitfalls including an improperly executed Will or improperly drafted Will (beware fill-in-the-blank forms!). Doing it yourself may lead you to believe you have a Will that facially cannot pass muster as a valid Will in court. Remember, that Will is just a piece of paper until a court finds that the Will is the valid, last will and testament.
If you use a do-it-yourself form, consider at least having an attorney review the Will for these facial defects. More often than not, using a do-it-yourself form is penny wise and pound foolish. Even when a Will is valid, it may cause a number of issues more costly to resolve in probate than you save by not speaking with an attorney at the onset.