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Many clients ask whether they need a will (or a revocable trust, which is discussed in another post).  Or they tell me they don’t need a will because they don’t have many assets, don’t have kids, or are too young to consider thinking about dying or a testamentary document.

The purpose of a will is to dictate who will receive your assets upon your death.  A radio ad that used to play on the air in Austin intoned “… if you don’t determine who will inherit your assets, the State of Texas will…”  The ad was correct.  The Texas Estates Code “intestacy” provisions set out who will inherit your estate if you don’t have a will.

Here are some of the consequences of not having a will (or a revocable trust in place of a will):

  • If you have children by a previous marriage, your spouse is not going to inherit all of your property. That’s right.  Your spouse will inherit 1/3 of your separate personal property, a life estate in your separate real property and none of your community property.  Your descendants get the remainder.
  • If you don’t want your child or another statutory heir to inherit from you, you must create a will to disinherit them.
  • If you don’t have a will, your attorney will have to locate and call to court several non-heir witnesses to court to establish the family tree and prove who your heirs are.  Sometimes with older decedents its hard to find living witnesses or they live far from the court.
  • In order to probate your estate most expeditiously, all of the heirs must agree on the identity of the administrator and the administrator’s status as independent administrator.  If not, the court will make this determination and may dictate that the administration be dependent and more involved.
  • In order for the administrator to have the power to sell assets of the estate for more than the limited purpose of pay certain estate bills, all of the heirs must agree.  Failure to agree limits the administrator to distributing the assets.  Imagine that 8 or 10 or 12 heirs own a piece of property and they can’t all agree to sell the property or can’t agree to the sales price or other terms.  A court will have to consider a suit to partition the property.
  • If you want one child to inherit a disproportionate percentage of your estate, you must have a will.
  • If you want to leave specific property to specific persons (such as grandma’s brooch or your ’76 Corvette) and there is a chance of disagreement, you must have a will.

Unless you own nothing or have taken other estate planning steps to avoid owning probate assets (such as a well-drafted and properly-managed revocable living trust), it is very possible that your estate will end up in a probate court.  It’s best to take the time now to make sure your testamentary plan is carried out in the most expeditious way, by the persons and on the terms that you choose.