Most people know the state provides default rules on how property gets divided after death; it’s easy to assume that a will isn’t necessary and families can sort it out after death. Wrong! A will makes the process much, much easier on your family. Here are five main reasons you should leave an estate plan for your loved ones:
1. Increased costs and delays in probate. When a person dies without a will but leaves an estate that must be handled through probate, Texas courts will almost always require additional procedures to determine who the decedent’s heirs are. Referred to as a Declaration of Heirship, this usually entails appointing a court-appointed attorney to investigate the decedent’s family relationships. Two people will have to give testimony as to the status of the decedent’s heirs; these people should have no claim on the decedent’s estate, so tracking down disinterested witnesses who knew the decedent well enough to testify can be difficult for a grieving family. The court-appointed estate representative may be required to post a bond to ensure they carry out their duties. The additional procedures and requirements add to the cost of probate that can easily exceed the expense of putting an effective estate plan in place while the decedent was still living.
2. Undesired Results of Property Division. As in most states, Texas residents are free to leave their property to nearly any individual or charity of their choosing. If there is family estrangement, estate beneficiaries requiring more financial assistance, or a legacy bequest left to a favored charity or church, a validly-executed will is the only way to alter the default rules. Moreover, many families may be surprised to discover how the law divides property between the decedent’s surviving spouse and children, particularly in blended families. Texas community property laws and rights of surviving spouses in estates can be incredibly complex, making it absolutely crucial to consult with an estate attorney.
3. More Court Oversight During Probate Administration. Unless all the heirs agree (and may not be possible with minor heirs), the court will require the decedent’s estate to be administered under Texas’s dependent administration rules. This requires judge approval for nearly every action in the estate, including selling property, paying debts, or distributing assets to the heirs. Dependent administration procedures are far more burdensome than the provisions for independent administration found in most wills drafted by a knowledgeable Texas attorney. This translates to more time and more expense for the estate beneficiaries (see #1, above).
4. Disagreement Among Heirs. For intestate estates, the court will appoint an estate representative to act as executor. Who gets appointed depends on their relationship to the decedent, with the decedent’s surviving spouse given first priority. This may lead to conflict among other family members, particularly in situations where adult children may not be close with their step-parent. Similar fights over whether property gets sold or distributed, how heirlooms are divided between children, or disagreements over property valuation can quickly follow. A well-crafted estate plan drafted to avoid family conflict can go a long way to minimize fighting between your heirs.
5. Limited Options for Minor Beneficiaries. If you have minor children, it is absolutely vital that you draft an estate plan as soon as possible. Besides identifying your child’s caretaker, your will can also leave your assets to your children in trust, where it can be wisely invested until your child is old enough to manage their inheritance. Without a plan, your child’s inheritance will likely be held in cash in a court registry or in a Uniform Transfer for Minors account, possibly losing out on years of investment returns. Furthermore, your child will likely have unrestricted access to funds in early adulthood, with no guarantee the funds would be used toward continuing education or buying a home.