Are you a parent who is considering drafting a will but don’t know where to start? If so, then you can count yourself among the large number of people who either don’t have wheels but need to or aren’t even considering having one drafted. It is good practice if you are over the age of 18 to have a will. The truth is that any adult should have a will because doing so can have profoundly important effects for your family were you to pass away. Instead of leaving your family with questions about finances after your passing, you can allow them to focus on caring for one another and grieving your loss. This is much preferable to having to worry about what was going to happen with your finances and the bulk of your estate after you pass away.
An interesting question that I have received often on from people is what to do if you want to leave a child or other family member out of your will. This type of question implies that you are experiencing some family problems and for whatever reason, those problems are leading you to want to leave that person out of your will. It is understandable to want to have as much control over your affairs as possible. It is even more understandable to want to do so after you pass away. With that said, I think we should take a closer look at these types of circumstances and how they can play into your life both now and in the future.
What is the role of an attorney in a circumstance like this?
If you find yourself wondering what it takes to leave a family member out of your will then it is wise to consult with an attorney. Even though wills are treated with a great deal of respect in Texas the reality is that it is still possible for your will to be challenged by a loved one potentially. With that said, you should consider speaking with an experienced probate and estate planning attorney before making any decisions on this subject.
The attorney will sit down and probably do their best to help identify what are the driving factors that have created an investment in functional circumstances with your family. For example, if you’re attorney can help by discussing with you any factors that are creating division or problems in the household then you might be able to avoid having to leave that loved one out of your will. Not only could this be preferable for that family member but it could also be preferable for you given that nobody wants to leave a family member out of your will. You are likely only doing so because do you believe it to be necessary for the benefit of your family.
You can help your attorney in this regard by helping him or her to identify the problems that have led to you are wanting to leave this person out of your will. These could be issues that are longstanding or could be more recent problems that have been brought about by this child or other relatives’ behavior. It could be that he or she makes bad decisions and as a result, you are not comfortable with leaving him or her money. Whatever the circumstances are, the more clearly you can answer questions the better your attorney will be able to understand the factors at play in your case and help you to prepare for the next stages of the wheel drafting process.
Typical family-related scenarios that oftentimes require careful planning and thought include second marriages, children from a prior marriage, and children who have substance abuse problems or spouses with whom you do not get along. Any of these circumstances can lead you to feel uncomfortable when it comes to opening up your state to him or her.
Many times you will have simply developed the wrong idea about this person or their behavior over time and that could cloud your judgment as to whether or not you want this person to be able to inherit money from you and your estate once you pass away. For example, you may be under the impression that your child does not like you because a sibling has told you that to be the case. Sometimes poor communication between family members can lead to people becoming estranged and feeling alienated. This is especially possible if you are an older person and have not interacted with their younger children in some time. I have even seen siblings attempt to engage in alienating behavior to prevent one of their fellow siblings from inheriting money from a wealthy parent.
you should bear in mind the likelihood of a challenge to your will if you were to come into an attorney’s office with a child of yours who is attempting to negate the ability of one of their siblings to inherit out of your estate. Attorneys will look for this type of behavior and will and should talk to you about the risks of moving forward with the will under these circumstances. This may be occurring if you’re adult child attempts to speak for you or their other siblings. This is a type of family dysfunction and disunity that can be potentially disastrous both now and in the future.
Finally, you should be looking forward attorney who stands ready to be able to teach you about the will drafting process. Not only that, but you may be blind to many of the circumstances that are ongoing in your household. You may be so deep into these family problems that you cannot identify them any longer. It may take an outsider to be able to tell you about a troublesome miss you and your family. The decisions you make with your money can have profound effects on the dynamic between your children now in the future.
Limitations about a will
The law in Texas does not force you to will items and pieces of property to your children or spouse at the time of your death. This means that if you wish to will all of your property to a charity, church, or a person outside of your family at your death that you may do so. However, as with most things in the law, there are limits as to your ability to follow your exact wishes. your freedom to distribute or dispose of your property as you would like to it is set up in the Texas probate code. Every person who is competent to make a will can do so however you see fit subject to any other limitations contained in the Texas property code.
What we need to figure out in this blog post is what are those limitations that have been set up in the property code? This would be an essential question to ask given that you are pondering whether or not it will be possible to leave a child out of your own will. Without knowing your specific situation I would venture a guess that something serious has happened in your life that is putting me in a position where you do not want to leave property to your children. It could be that your children have made poor decisions with money in the past and you are concerned that leaving the money will ultimately harm them. Or, your child may have fallen away from an important part of your life and you simply would rather their share of the property go to someone that you deserve two. Whatever the circumstances are we need to figure out the extent to which you’re able to do so and any limitations on this right.
Probably the most significant limitation that you will have on your property at your death is that you cannot will your homestead to someone besides your children or your spouse. The family homestead must be made available to your spouse or minor children. Essentially, you would not be able to will your house to a charity, church, or other relative besides your minor children or your surviving spouse. Likewise, if you are married then you cannot do anything with your spouse’s separate property nor their interest in your Community property without the consent of your spouse. This brings into question the important issues associated with making sure property is characterized correctly so that there are no issues great at the time of her passing.
What about retirement benefits? If you are reading these blog posts and are over the age of 50, work for the government or receive benefits through a union then you may have a pension plan. In that case, you are left with only your surviving spouse being able to act as the beneficiary under this pension plan. You cannot name a beneficiary under your will who is not also your spouse. They will not trump your pension terms.
Another probate instrument that is of some relevance here is trust. You are likely not able to designate where the property in this trust goes when you pass away. This is true unless you hold what is called a power of appointment. In that case, there may be an inability to appoint the property 2 a person of your choice. So, if you have set up a trust for your family you need to be aware that you may not be able to control exactly where that property goes in the trust or to whom it is distributed at the time of her death.
Do circumstances change in estate planning for a blended family?
As opposed to formerly being an exception, blended families are more often now becoming the norm. I don’t necessarily have any statistics or studies to show whether or not this is the case but I’m just giving you my opinion as an attorney who works with many different people from all walks of life. Blended families are those where people either enter into second, third, or additional marriages and have children from prior relationships that they are bringing into the home. These blended families combine children from multiple relationships and bring everyone under one roof.
As I’m sure you could imagine the more families, relationships, marriages, and family histories that are in playing means the more potential problems that could result. For a traditional marriage in a nuclear family, it would be normal for you to leave all your property to your surviving spouse. If you are not married then it is more likely that you would leave your property to your children in full. Whether or not your children are under the age of 18 will determine if there is a trust in place that would hold property until your children reach 18 or another age milestone.
Specifically, with trust, all the property in your trust may go to your spouse with whatever is left over to your children or all to your children if you are not married. Blended families add in several important elements that you should be aware of if you are in this type of situation. This is not to say that one type of family structure is better than the other but the reality is that blended families increase the likelihood that there are residual issues from past relationships that need to be accounted for in your current estate and family planning.
The difficult part of a blended family is that you cannot always assume that there is a mutual love between the parties. For instance, I don’t think it would surprise anyone to learn that not all stepparents have the same love for their stepchildren that they do for their natural-born children. Although this does not sound nice to say it is the reality for many families. Relationships based on love and mutual affection more oftentimes include trust and a lower likelihood of disagreement in acrimony.
Even in these types of situations, your blended family can become dysfunctional when you are the tie that binds everyone together and has passed away. Think about it if you are the voice of reason in the calm and the storm between multiple sides of a family. The trouble with blended families is that you oftentimes have more than two sides that exist. This means you are fighting a battle on multiple fronts. When you pass away there may not be another strong central figure for your family to build around. As such, there is no reason to expect that your second wife will care for your children as much as the children from her first marriage period this isn’t to be nasty or to talk down to people but it is just my lived experience as an attorney.
Let’s say that you are in a blended family. You are a state plan that provides that everything should go, as far as property is concerned, to your surviving spouse at the time of your death. If your spouse does not survive you then all your property would go to your children. Keep in mind that under this type of plan there is no guarantee that the property will go to your children once your surviving spouse passes away. The reason for this is that your will could not necessarily account for what your surviving spouse will have in their will. This is true even if both of your wheels mirror one another at the time of your passing. It would not be out of the ordinary for your spouse to change their will and pass the property they get from you onto a new spouse or other family members that are outside of your immediate family.
However, this is not that dissimilar from a situation that could occur in a traditional family. If your will provides for everything to go to your surviving spouse and there is no surviving spouse then everything to your children, there is no guarantee that the property will eventually go to the children once your surviving spouse passes away. Even in the traditional family if you pass away then your styles could still remarry after that time, change their will and leave property to persons who are not your children. You see things like this occur with some frequency and it isn’t much you can do to protect against it.
Finally, in your blended family having the property of yours go to your surviving spouse and trust with the distribution to your children upon the death of your surviving spouse will do the greatest amount of good to ensure that your children endeavor property when your spouse passes away. However, bear in mind that potential problems can arise in giving your spouse and your children competing for interests in the same property.
Questions about the material contained in today’s blog post? 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 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 estates law as well as about how your family circumstances may be impacted by the filing of a probate or estate planning case.