Have you recently been put in the position of becoming an heir to an estate after your loved one has passed away? This can be an extremely confusing time for anyone. Not only are you having to deal with the stress and anxiety associated with the passing of a loved one but you also have factors to consider like the financial implications of becoming an air, understanding what your rights and duties are as the person’s air, and what it means to be air in the first place. These are not necessarily skills or pieces of information that we gather over time just through living our normal lives. You probably didn’t have a class in high school or college that taught you how to be an heir or what the term even meant.
Losing a loved one is very difficult. My wife and I have had the unfortunate experience over the past couple of years to lose multiple loved ones. I’m sure that some of you reading this blog post can say the same thing. There’s a tremendous amount of emotional tax that goes into losing a person that you were close to. Whether it is a friend or family member losing someone that you love is not easy. When it comes to a situation where you lose a loved one who is a relative of yours you might also find yourself in a position where you are an heir to that person’s estate. This means that you could potentially inherit property from him or her based on the probate laws of Texas.
Did your loved one have a will?
Even if you are not familiar with your responsibilities, duties, and rights as an heir of a person to state you are probably somewhat familiar with what it means to have a will. A will is a document that directs a person to divide their property in a certain fashion after they have passed away. The person who takes on this responsibility after the passing of a loved one is known as the executor of a will. The executor of the will would likely not be a beneficiary under the will but should be a relative or close friend. Today, the executor is someone who is thought to be trustworthy and otherwise capable of following the deceased relative’s intentions after their passing. If you believe that a loved one has passed away with the will then finding out what is contained in the will and what it means to you is very important.
Even if you are a relative of a deceased person that does not guarantee that you will be able to obtain property out of their estate as a result of their death. The reason for this is that the property that will be divided out of their estate, and how the property will be divided, is determined based on the terms of the will. This means that all of the property and there is the state could go to relatives or none of it could go to a relative. This means all the property could be willed to a distant cousin or all of their property could be willed to a church or charitable organization. My point is that you need to become familiar with the will to determine what your potential rights are.
You may want to seek out the executor or ask questions to find out who the executor is after your loved one passes away. This can be easier said than done given how sensitive a topic this will be immediately after a loved one’s passing. I’m sure that you do not want to appear insensitive or crass when it comes to honoring the memory of your loved one period, however, there is nothing wrong in and of itself as far as being curious about your rights in what may be the wishes of your loved one in terms of your ability to in here its property.
What you may want to do is allow for a certain period before beginning to inquire about the whereabouts of a will or things of that nature. For most families, you will be brought into the discussion without much stress or anxiety. Circumstances where you and other loved ones fight over property or other aspects of a deceased loved one’s estate are probably not going to happen in your situation. Most families are not structured like a bad movie. However, you need to be aware of the possibility that you may need to work to pursue and defend your rights as an heir. If your loved one had a will then you will have the opportunity to pursue your rights through probate.
Did your spouse pass away without a will?
To pass away without a will is to die intestate. Dying intestate simply means that your loved one passed away without a valid will. Passing away without a will means that but Texas probate code and its laws on intestate distribution would take hold and would determine how the property would be distributed upon the death of your loved one. Even before that, the creditors of your deceased loved one would need to be alerted and be allowed to pursue their rights before any property is distributed to beneficiaries or heirs.
Dying without a will is it situation that in most circumstances, can be avoided. Not only can it be avoided but it absolutely should be avoided. Creating uncertainty for yourself and your loved ones after your passing is not what you want to do. Rather, you went to allow your relatives to grieve properly and remember your life in a positive sense. By not having a will you may be putting your family in a position where they have to focus on other matters and do not get an opportunity to properly grieve. Even though you will not be present to be able to witness this firsthand there are several ways that you can and should prepare for your passing. Having a will is the most direct way for you to do so.
Do you need a will even if you are poor?
This is the sort of direct question that I receive with some frequency from our friends and neighbors in the community. Many people have been led to believe that if they are not rich, they do not need to have a will. What is the point, they will argue, of having a will if you have little property to divide up? While I can see their point in asking the question I would see them that the point of having a will is not to do much of anything for you. True, having a will can provide you with Peace of Mind during your life but the primary purpose of a will is to benefit those around you. By taking the time to draft a will you can avoid circumstances where there is misunderstanding or confusion at the time of your passing.
Drafting a will is not something that takes a great deal of time or costs a great deal of money. Rather, drafting a will is something that can be done rather quickly if you are efficient. Part of the benefit of not having a lot of property or a complicated estate is that it does not take a lot of time to draft your will. Simply stating what your intentions are for your property can help your family. There are logistical issues to sort through when it comes to doing things like selling a vehicle, being able to enter your home or apartment, and gaining access to a bank account. Rather than putting your family in a position where they have to wait a very long time for a probate court to give in this authority simply by having a will you can help speed that process up considerably.
Whether you are rich or poor, old or young it Makes a great deal of sense for you to have a will. The simple truth is that none of us know that moment when our life will come to an end. Therefore, we cannot simply state that we will draft a will when we get older or when we have a moment. My recommendation is to seize the moment and take the time necessary to draft a will now. No matter if you live for another 30 years or another 30 months your family will be glad that you took the time to do so. This is the legacy that you have an opportunity to leave your family with. Don’t make assumptions and do what is best for everyone involved. Have a will and work with an experienced estate planning and probate attorney to help you draft the will so You can minimize the opportunities for there to be mistakes within the document.
What exactly is an heir?
An heir is a person who is identified under the probate laws of Texas as being a person who is entitled to receive property out of an estate if no will has been drafted. Frequently, heirs are close relatives to a deceased person. You can speak with experienced probate in a state planning attorney to find out exactly where you fall in the order of hierarchy for a deceased loved one in their estate.
Rather than having a will dictate how your loved one’s estate will be divided, the laws of Texas will go into effect and will dictate how a probate court judge will divide property upon the death of your loved one. This is another reason why having a will is extremely beneficial. If your loved one died without a will he or she lost the opportunity to determine how their property should be divided upon their death. Rather, now they find themselves, or rather their estate finds itself, in a position where a probate court judge will have the final say-so when it comes to the division of their belongings and property. This is probably not what your loved one would have preferred but it is the reality for their family now.
A probate case is spent with a judge determining and naming heirs to the estate and then dividing property. As a relative of the deceased person, you will have an opportunity to respond to the filing of the probate case and to make yourself available for the distribution of property. Being an heir simply means that you are entitled to some or all of a deceased person’s estate or assets. However, there are some legal aspects to this discussion that relate to the different types of errors that we should consider now.
You have probably heard the term heir apparent. An heir apparent is the relative or person considered to be the most likely or logical to have rights to receive assets from a deceased person’s estate. This person is the first in the line of succession to receive property upon the death of your relative. For example, let’s assume that your uncle died without a spouse. If he has children then those children will be the heir of his parents. They would stand to be first in line when it comes to receiving property out of an estate.
It is most likely the case that you would be a collateral heir of your deceased loved one period a collateral heir is someone who is in the same bloodline as your deceased loved one but is not a direct descendant. Anyone other than the children of your deceased loved one would count as collateral heirs. Brothers, sisters, uncles, aunts, and cousins would all be classified as collateral heirs. the larger your deceased loved one’s family is the more collateral heirs there may be.
On the other hand, there are situations where people pass away with very few loved ones in their life and certainly no immediate relatives. In that case, the court would likely have to bring an attorney ad litem into the picture. In this context, an attorney ad litem would have the job to seek out potential heirs of a deceased person. This is oftentimes done by performing research on the deceased person, putting advertisements out to notify potential heirs of a loved one passing, and generally performing some degree of due diligence on behalf of the deceased person and their estate. If no relatives can be ascertained and no errors can be located then the deceased persons the property would escheat to the state of Texas. This means the state of Texas would receive all the property in the persons of state after creditors are paid.
It doesn’t take an expert to figure out that this is a situation that most anyone would want to avoid. While some worst people and entities could receive property than the state of Texas this is probably not what your loved one had intended. Rather, it is more likely that your loved one would have preferred someone in their family, a charitable organization, or another group to receive property instead. My not having a will your loved ones lost out on the opportunity to have the final say in this discussion. As such, it is now up to a family court judge to determine where the property should go up on their death.
Had your loved one died with a will then that will would have laid out specifically what your rights to inheritance would be. Once there is no estate plan in place then you are considered to be the next of kin of the deceased person. This means that if your loved one died without a will then their heirs would be entitled to any property and assets in their estate at the time of their death. Typically speaking, children and spouses would have the primary means to inherit property after the death of a person. Next, collateral errors such as yourself would then be in line to receive property.
Certain properties can pass without a will or the need to go through probate. Examples of this would be retirement plans and life insurance policies where there are named beneficiaries within the policy or plan itself. In that case, you would not need to have a will or even go through probate to distribute those items. If a financial institution becomes aware of the death of your loved one they may have a life insurance policy or retirement account where you are named as a beneficiary. In that case, they would likely work with the probate court to contact you and notify you of this. It is important to have representation during a process like this so that you can make sure that your rights as an heir are protected in the probate process.
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 and probate law 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 probate and estate planning law As well as about how your circumstances may change if you are named as a beneficiary under a will or are properly in the air to a deceased relative’s estate.
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