What Happens if I Don't Have a Will?
Estate planning is often underestimated and for a good reason. Naturally, most people are less inclined to think about what happens to their assets when they die, as it is not something they choose to think about. However, a comprehensive estate plan can make the lives of a surviving spouse or surviving children much easier at a time of grief. But when pushed, many people do know what they want to happen to their assets.
If a person dies without a will, the law defines who a persons heirs are, and a court checks the work of surviving family who file a document with the court about who they believe a deceased person’s were as defined by the law. There are two main problems with this:
It might not be the family you want to inherit.
This process can be lengthy and expensive.
Create Your Perfect Estate Plan with Hardie Alcozer
If you are ready to think about what happens if you die, at least in terms of your assets and family members, schedule a time to visit with us about creating a will.
An estate planning attorney from our firm will work with you to ensure that you consider everything and everyone that is important to you while an estate plan and also discuss the various alternative estate planning options available. You can express your wishes in accordance with state law without letting the courts and legislature decide what happens in the future.
Call our team today for a free initial consultation to discover precisely what we can do for you and how we can change your present and the future for the better. Reach us at (512) 374-4922.
Probate Court in Texas
When a person dies in Texas, their assets typically pass through probate court, even if they had a will in place at the time of their death. In these cases, probate is the opportunity to legally settle a will, ensuring that the will is valid and that the wishes expressed in the will are adhered to.
If you die without a will, your family will still need to enter the probate process, but state intestacy laws take precedence over any specific wishes you may have had.
It is important to note that probate does not necessarily impact the entire estate. Under certain circumstances, more valuable assets, or those with alternative conditions attached, may be distributed in other ways even if you die without a will.
Common examples of assets that are not dealt with through probate under intestacy law include:
Any assets contained within a living trust - your estate planning attorney can provide more information on creating one if suitable
A life insurance policy, bank accounts, savings accounts, retirement accounts, and other financial assets with a named beneficiary
Money, real estate, and other assets covered by beneficiary designation or Lady Bird deed.
Appointing a Surviving Spouse, Friends, or Family Members as Representatives
If you die without a will, you also miss out on the opportunity to appoint a personal representative to manage your affairs following your death. Many people appreciate the peace of mind associated with appointing someone they trust to navigate probate court and distribute their assets to beneficiaries according to their wishes.
With a will, it is possible to appoint an executor of the estate who takes responsibility for ensuring your wishes are respected. A last will and testament can also name a guardian for minor children or any other family member that may need one. Dying without a will can impact not only what your children inherit but also who takes responsibility for their wellbeing if there is no surviving parent.
Many people choose close relatives or a domestic partner as representatives. However, even a simple will can be flexible and enables anyone to appoint a friend or someone with whom they share a professional relationship as a guardian, executor, or public trustee.
What Happens To Your Entire Estate If You Die Without a Will?
In dying without a will, some common scenarios under Texas intestacy laws include:
Dying While Married and With Children or Descendants
If someone in Texas dies without a will but with a surviving spouse and children, their assets are divided between them. The shares they each receive depend on whether the surviving children are also the children of the surviving spouse
Intestate succession laws consider adopted children, those born outside marriage but with acknowledged or proven paternity and posthumous children to have the same rights
Dying Without Descendants but While Married
If an individual dies while married but without children, then all of their community property and their separate personal property (including things like cash and stock) will go to the surviving spouse.
Any separate real property would be owned one half by the surviving spouse and one fourth by each surviving parent. If one or both parents of the decedent are not living, then the decedent’s sibling(s) receive a share.
Dying While Not Married but With Children
If you die with children, but without a spouse, the whole estate is divided equally among your children. So, if you have three children and no spouse, they will each receive one-third of your estate under intestacy laws. If any of your children died before you, their children may receive their share and split it equally in accordance with intestate succession laws.
Dying Without a Will in Domestic Partnerships and Common-Law Marriages
If you live with someone in a domestic partnership, you have every reason to consider writing a will. While you may consider them your spouse, a domestic partner is not recognized in law. As such, a probate court may determine someone other than the other party in a domestic partnership, such as a surviving parent, as being the closest relation for the purpose of identifying beneficiaries.
On the other hand, a common-law marriage may be recognized under Texas law if it meets certain criteria. However, two people are not considered to be part of a common law marriage simply because they have lived together for a certain amount of time. If they were never legally married, they may still be recognized as such if:
Both parties agreed to be married
They lived together as husband and wife in Texas
They made representations to others that they were a married couple
This is not the case in every state, with Texas being one of the exceptions rather than the rule. Indeed such states are in the minority, while some such as New Hampshire and Iowa, only acknowledge common-law marriage for specific purposes.
Can My Property Go to the State If I Die Without a Will?
Many people wonder what happens if you die without a will. Texas is a state that typically seeks to make every effort to find the correct beneficiaries, even in cases where people die without a will. Some cases are easier than others - a spouse, minor children, or parents are often the first port of call.
If the probate court is unable to identify a spouse, parents, or another obvious candidate for the distribution of property, the law dictates that officials must make every effort to find a living relative, no matter how distant.
Contact Hardie Alcozer for All Your Estate Planning Needs
Nothing out of the ordinary happens if you die without a will, but it does mean that you have relatively little control over your estate and how your assets are distributed among beneficiaries. It also means that you miss out on the opportunity to appoint a trusted agent to carry out your wishes when you are no longer able to do so yourself.
With the right guidance, writing a will does not need to be complex or time-consuming, which is why the estate planning specialists from Hardie Alcozer are standing by to help. Our attorneys will provide not only all the legal expertise to ensure your wishes adhere to Texas law but decades of experience to help determine how best to make your future plans.
We invite prospective clients to contact us for a consultation with as the first step towards peace of mind that can last a lifetime. Call our office today at (512) 374-4922.