One of the trickiest parts of drafting a will isn’t so much the actual document itself. The hardest part of drafting will is sometimes working up the courage to do so. You may question why I use a word like courage in this context but I can assure you are you that many people are reading this blog post, maybe even yourself, who have a genuine fear of considering what will happen with their property and assets after they pass away. 

There are obvious reasons why this is the case. None of us like to consider our death but the reality of our lives is that they will all come to an end. At that point, each of us is responsible for preparing for that outcome as best we can. My recommendation to anyone listening would be to have a will in place if you are over the age of 18. The effort the draft will is minimal especially if you do not have a complex life as far as property and debts. All it takes is a plan and following through on that plan. new paragraph

What are the questions you should be asking yourself as you begin to draft a will? 

The first consideration when it comes to estate planning is whether or not you are married. The question of whether or not you were married will inform how you choose to divide your property and whether or not the Community property laws of Texas will apply to your case. Anyone who reads our family moblog knows that Community property laws in Texas differ from many other states. As a result, you should be aware of what being married means when it comes to drafting a will. 

Next, we should ask ourselves how many children do you have had in our lifetime. Of those children that you have had how many of those children are still alive. If any of them are minors or have special needs then you should consider that as well. Another aspect of this discussion would be whether or not you plan on having any additional children in your life. All of this will inform how you draft a will and who stands to inherit from you if you do not get a well-drafted before your passing. 

another important question for you to ask yourself is regarding the person you would like to execute your wishes at the time of your death. Once you draft a willing part of that process will be deciding on who will be named as the executor of the estate. The executor of your estate executes on your wishes. As such, this should be a person that you trust and that you expect who will be able to work with your family to ensure the proper allocation of your assets at the time of your death. An executor should not be someone who is also a beneficiary under the will. 

The executor of the will also need to be able to have the wherewithal to apply with the probate court, collect any assets under your estate and also pay any creditors who are owed money at the time of your passing. Once all creditors are paid then state funds and property should be distributed according to the terms of your will. It is simpler if your executor is a person who lives close by to you in is a local Texas resident. 

It is possible to select an executor as someone who does not know you personally. I don’t know why anyone would do this but it is possible. However, I would recommend that you select someone who knows you, your family situation, and his understanding of your particular circumstances. This just makes it more likely that the executive will be able to follow through on your wishes and do as you ask him or her to within the will itself. This will also provide you with some Peace of Mind as you begin the planning process surrounding the will. 

Once you have determined who is going to act as your executor then you should begin to compile a list of any persons who will be included in the will as beneficiaries of your estate. A beneficiary is a person who will take Premier estate. You can begin to consider what persons you would like to receive property out of your estate at the time of your passing. Many people will leave property only to their children and spouse. However, if you don’t have a spouse or children and there may be other individuals, charities, or entities that you choose to name as beneficiaries under your will. 

What is trust? 

So far in today’s blog post, we have been discussing wheels as a mechanism of state planning. However, trust or another estate planning measure may be included in the will drafting process. This is especially true if you have concerns over the property being taxed after your passing or if you have minor children that you want to protect through the drafting over will. 

More specifically, trust is a legal device that allows you to delay the passing of a gift to another person. This delay may be regarding all portions of a gift or a single portion of a gift. Many times, for example, a person will choose to have a large gift sent out to beneficiaries over some time rather than to receive the gift in one lump sum. Their trust is most commonly set up within a will when you have minor children. The reason for this is fairly obvious in that most people are not comfortable gifting large sums of money or property to minor kids. 

One seated determine that you do want to include a trust within your will then you need to pick a person or financial institution to act as the trustee of that trust. The trustee acts similarly about trust as an executor does to a will. The trustee will manage the trust according to its terms. 

A major do regarding wills: draft one or risk losing control over your property once you pass away 

In Texas, the property is classified as either being separate or community in nature. Separate property is any property that is owned before your marriage or acquired during your marriage by gift or inheritance. If you are awarded damages during your marriage from a personal injury lawsuit that this also counts as separate property. On the other hand, Community property is all property, other than separate property, which is acquired by you or your spouse during your marriage. 

As a result, there is such a thing as separate real property, separate personal property as well as Community property regarding personal and real estate. If you were to pass away without a will then the probate laws of the city taxes would determine who your heirs are, and the extent to which your property will be distributed among them. An important part of this consideration is whether the property is separate or community in nature. 

Community property is distributed to your Spouse so long as all of your surviving children and descendants of yours are also children and descendants of your surviving spouse. If any of your surviving children or descendants are not also a child or descendant of your surviving spouse, then 1/2 of your Community property will pass to your children As well as to the descendants of any deceased child. Your spouse will then retain 1/2 of the Community property that he or she owned before your passing away.       

How is separate property distributed?

Separate property is distributed at the time of your death if you do not have a will. The method that is employed will depend on whether the property is your real property or personal property. Separate property is distributed in the following ways. If you are survived by a spouse and children then your separate personal property passes one third-tier spouse and 2/3 to your children. The separate real property will pass to your children save for a 1/3 interest in a life estate for your surviving spouse. 

If you have a spouse who survives you, this means that he or she is entitled to use 1/3 of any real property that exists at the time we were passing including what is in your will. That life estate can be used during his or her lifetime and once he or she passes away your children will have full title to the separate property that you own and is included in your will. 

All separate personal property passes to your spouse if you pass away but do not have any children or other descendants. The separate real property would pass 1/2 tier spouse and 1/2 tier parents or other relatives like brothers, sisters, or their children. If you do not have any parents, brothers, or sisters then all separate real property passes to your surviving spouse if you also do not have any children. 

The rule is in Texas, no matter how distantly related one person is to you when you pass away without a will, the potential is there for him or her to become an heir. One heir stands to be able to inherit from you. The motivation for this system is to prevent the state of Texas from inheriting property from you unless it is necessary. None of your heirs being alive at the time of her passing would potentially allow for the property to pass to the state. The reality is that the state of Texas very rarely acquires property from persons that pass away. 

Why is it so important for you to have a will before you die? 

If you were to die without a will then you are leaving it up to the probate laws of Texas to determine how your property is handled and disposed of at the time of your death. The main motivation for these laws being passed would be the timely and orderly distribution of property. This means that the law does not look to any relative or potential heir as a favorite. No favoritism will be shown in distributing your property at the time of her death worry to pass away with no will. It also doesn’t matter how closely related a relative or air would be to you. It also doesn’t matter what sort of relationship you had with him or her. Meaning, that air that you are not especially close to or even have problems with may end up inheriting property from you against your wishes. 

As you can see, dying without a will could quite probably lead to events occurring in your life that go against your wishes. Not only could people stand to recover property from you that you would prefer not to the result of a case may be that increased costs and delays go into place for your family. Imagine your spouse or children having to spend sums of money only to have a portion of your estate and up with persons that or not favorable to you or your family. 

What are the sorts of undesirable results that may come about if you die without a will? 

Even if you do not currently have a will you likely have an idea in mind as to how you would like your property to pass to others at the time of your death. Dying without a will means that your property may not even be inherited you would have liked. I imagine that in building a life for yourself you did not do so to benefit the state of Texas at the time of your death. Rather, you likely built a life for yourself and your family. However, you still need to put your wishes on paper to ensure that this happens the way you wanted to at the time of your death. 

Let’s take the following situation as an example. Suppose that you prefer to leave all your property to your surviving spouse whenever you pass away. Your spouse would then be able to provide for and take care of your children when you are gone. Although this can be the result of intestate distribution if you were to pass away without a will there is no guarantee that this will unfold exactly as you see fit. If you pass away without a will and are survived by your spouse and children,  not all of whom are products of your current marriage, then your spouse would receive only 1/2 of the Community property. This includes your family home. 

another important consideration is that if the most important people in your life are not your blood relatives then they do not stand much of a chance at all to inherit property from you at the time of your death if you die without a will. For example, if you have friends, roommates, people you attend church with, or charitable causes that you wish to be able to hear property from you then you need to be able to have a well-drafted. These people and entities stand no chance to inherit or benefit from your passing if you do not have a will. 

This may seem extremely unfair but it is the truth and is the reality of the situation given the probate laws in Texas. Additionally, dying without a will can keep assets being tied up in the probate process for many months or even years. The probate court will have to determine who your heirs are. A person who is determined to be the administrator for your estate will be responsible to the court for attending to matters and ensuring that the law is followed. 

The administrator will have a lot of responsibilities including locating any of your heirs, inventorying all of your property, paying off debts, and identifying debts. The administrator of the estate will also have to distribute property after the process. The ministry will also need to locate documents like deeds and certificates of title to complete these relatively complex processes. All of this can take time and money. 

It is not uncommon for the entire proceeds of the urban estate to be spent on administrative costs and fees. Dying without a will cost time and money not to mention frustration for your entire family. It is incredibly beneficial for your family and responsible for you to have a well-drafted for yourself before it is too late. There is no telling my news a pass away and it is assured that it will not occur at an opportune time. 

Questions about the material contained in today’s blog post? Please do not hesitate to contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law and estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family may be impacted by the filing of an estate planning,  divorce or child custody case.