Why does my family need a will?
Who will get my property if I don’t have a will?
Does everything pass through my will?
What is community property? What is separate property? Why do I care?
WHY DOES MY FAMILY NEED A WILL?
This is a general discussion about reasons for needing a will in Texas. Please note that the below discussion is not intended to be a replacement for legal advice. If you have a specific legal question about a Texas will, you should contact a real, live Texas-licensed attorney.
1. KIDS, KIDS, KIDS!
It happens to a lot of us—one day you wake up and somehow you have been surrounded by a bunch of kiddos—and they’re all yours! It seems like a blur—as magical as it is—exactly how did this happen?!
One of the most common reasons clients contact me is because they now have children and they want to make sure those children will be taken care of if they die. The wills that I draft for parents with minor children include two important aspects: First, an appointment of a guardian or guardians to care for the minor children. And second, an appointment of a trustee to manage the property that the children inherit. It is very important to express your desire about who should be guardian and trustee for your children—otherwise the court is forced to make the selection and they may choose a person that you would not want to have such control.
2. BUT I DON’T HAVE ANY KIDS…YET!
Often clients contact me to draft wills because they are expecting a new child, either because they are pregnant or adopting. It is NOT necessary to wait until the child is born or legally yours to write your will. In fact, it is a good idea to get this taken care of before you are up to your ears in diapers! The wills I draft include clauses to cover any after-born or after-adopted children.
4. BUT I DON’T HAVE ANY KIDS…PERIOD!
Just because you don’t have kids, doesn’t mean you don’t need a will. Every family situation is different and has its own complications.
Spouses: Often clients assume that their spouse will inherit everything when they die, with or without a will. And this is not necessarily true. Depending on whether your property is considered “community” or “separate,” (see discussion below on community and separate property), your spouse may inherit, or your spouse may inherit along with your parents and siblings. All of sudden, your surviving spouse might be a co-owner of your home with his or her in-laws! This may not be a desired outcome and having a will gives you the power to choose how your property is inherited.
Modern Families: Many families have same-sex partners or have decided not to get married for whatever reason. Many families include step-children. If you do not have a will, your assets will not go to non-spouses or step-children. It is important to have a will to leave your assets to the ones you love.
Giant families: If you have a large family and you do not have a will, there is a possibility that all of your heirs will become co-owners of all of your assets. And this might lead to unnecessary difficulty or conflict because they may not live nearby or they may not get along. If you do have a large family, you already know that it can be difficult to get everyone on the same page! If you have a will, you can choose by whom your things should be inherited and/or you can designate someone to be in charge of managing or distributing your assets.
4. BUT MARY, I DON’T HAVE ANYTHING! WHY DO I NEED A WILL?
You may not think you need a will now (because you don’t have any assets or kids), but that’s not to say that your estate might be much different at the time of your death. You may inherit a large sum or start making more money. Who knows, you may win the lotto and then get hit by a bus, all in the same day! A properly drafted will would get those winnings to the person that you’ve chosen to inherit from you.
Furthermore, I can help you plan for emergencies other than death. For example, documents such as powers of attorney, medical powers of attorney, advance directives and declarations of guardians are available for you to appoint trusted persons to take care of you, physically and financially if you become disabled or incapacitated (please see my Services tab for more information on all of these documents).
WHO WILL GET MY PROPERTY IF I DON’T HAVE A WILL?
This is a general discussion about Texas intestate succession. Please note that the below discussion is not intended to be a replacement for legal advice. If you have a specific legal question about who will get your Texas property if you don’t have a will in Texas, you should contact a real, live, Texas-licensed attorney.
In Texas, property is inherited as follows in the absence of a will (note: these rules apply to a person who dies after September 1, 1993, when major changes were made to Texas probate law):
Also note that an understanding of the difference between community property and separate property is helpful here—please see my FAQ regarding the difference.
MARRIED AT THE TIME OF DEATH:
Children all from the same marriage. If all of your children are also the children of your current spouse, then your spouse will inherit all of your community property (CP). Your children will inherit a two-thirds interest in your separate property (SP), and the remaining one third of SP will go to your spouse (if there is SP real property, such as your residence, your children will inherit a two-thirds interest in the real property and your spouse will inherit a one third life estate that will go back to your children when they die).
Children from a prior marriage. If you have children from a previous marriage, all your children (from each marriage) will inherit all of your one-half of the CP. Your spouse will keep their one-half of the CP. Your SP will be distributed the same way as above.
No Children. If you have no children, your spouse will inherit all of your CP. SP that is not real estate will also go to your spouse. Separate real estate will go one half to your spouse, and the other one half will be split between your parents. If either parent is deceased, that parent's share will be inherited by your siblings. If none of your parents or siblings (or their descendants) survive you, your spouse will inherit all of your separate real estate.
NOT MARRIED AT THE TIME OF DEATH:
Children. If you are unmarried with children, your property will be divided equally between them. If any child died before you (is “predeceased”), but she had children, her share will go to those children (your grandchildren). If your predeceased child did not have children, her share will be divided between your surviving children.
No Children. If you are unmarried with no children, your father will inherit half of your property, and your mother will inherit the other half. If either parent is deceased, their share will be equally divided among your siblings. If a sibling is deceased but had children, the children will inherit (your nieces and nephews). If a sibling is deceased but left no children, the surviving siblings will take that sibling's share. If neither of your parents nor any of their descendants survive you, your grandparents will inherit your estate equally. If either grandparent has died before you, their descendants (your aunts, uncles, and cousins) will inherit your estate.
TREATMENT OF POTENTIAL HEIRS:
Posthumous children. Children who are conceived before death and who are born after death are considered children for Texas intestate succession purposes.
Adopted children. Adopted children can inherit from both their adoptive parents and their biological parents (unless a decree terminating the parent-child relationship specifically states otherwise). Adoptive parents can inherit from their adopted children, however, biological parents cannot inherit from their biological children through Texas intestate succession.
Non-marital children. A child can inherit from their biological mother or biological father (however, the standard of proof of paternity is higher than that for maternity). A biological mother or father can also inherit from their biological child.
Step-children. Step children may not inherit from their step-parents through Texas intestate succession.
DOES EVERYTHING PASS THROUGH MY WILL?
Please note that the below discussion is not intended to be a replacement
for legal advice. If you have a specific legal question about what Texas
property passes through your Texas will, you should contact a real,
live Texas-licensed attorney.
Certain assets pass to a decedent’s heirs outside of probate,
that is, without the necessity of a court order. For example:
Life insurance. The insurance company simply makes the check out to whomever
you listed as your beneficiary (this is why it is important to remember who you’ve
listed as beneficiary and to change it if your life changes due to divorce, death, etc.)
Pension benefits, retirement plans, or IRA accounts. Like life insurance, the
beneficiary you listed gets the check.
Cars titled in certain Texas counties. The local DMV is authorized to retitle the car
in the name of whomever shows up with the old title and swears on penalty of perjury
that he is your heir.
Bank accounts. Joint bank accounts that were owned with right of survivorship.
Personal Items. Clothing, furniture, books, electronics, jewelry, and other similar
items, if your spouse and family and friends will be able to divvy them up without
significant argument. (If there is a dispute, many times simply producing an un-probated
will that directs what is to be done with these items can settle any arguments).
WHAT IS COMMUNITY PROPERTY? WHAT IS SEPARATE PROPERTY? AND WHY DO I CARE?
This is a general discussion about Texas community and separate property. Please note that the below discussion is not intended to be a replacement for legal advice. If you have a specific legal question about Texas community and separate property, you should contact a real, live Texas-licensed attorney.
All property in Texas (including cash) is classified as Community Property (CP) or Separate Property (SP) based on when and how it was acquired:
Separate Property: A spouse’s SP consists of:
The property owned or claimed by the spouse before marriage;
The property acquired by the spouse during marriage by gift, devise, or descent; AND
The recovery for personal injuries sustained by the spouse during marriage, except any
recovery for loss of earning capacity during marriage.
SP includes earned income from the work of either spouse before the marriage; capital gain on separate property; gifts and inheritances received by either spouse before the marriage; and gifts and inheritances received by either spouse during the marriage, including joint gifts.
Community Property: CP consists of property, other than separate property, acquired by either spouse during marriage.
Earned income from the work of either spouse during the marriage is CP. CP also includes dividends, interest, and capital gain earned on community property, and dividends and interest earned on either spouse's SP during the marriage.
Why do I care?
The reason we must differentiate between community property and separate property is because if you die without a will, the way property is designated affects how it is distributed (see my FAQ on who will get my property if I don’t have a will).
Once property is acquired, it takes on the status of either CP or SP and it never changes. That said, sometimes SP can become so inter-mingled with CP that it can no longer be distinguished as “separate.”
When a particular asset is a mixture of CP and SP, it can make inheritance complicated. If you have a question about the nature of a particular asset and who may inherit it if you die, you should consult a Texas-licensed attorney.
