Death and taxes. As the old saying goes, both are inevitable, and none of us likes to ponder too closely our mortality or the result. But the law allows us to take the initiative in advance and make a plan that distributes your property in the way you see fit. As a Dallas-Fort Worth estate planning attorney, I recommend wills for my clients as part of a comprehensive estate plan to accomplish goals, protect property and pass assets to loved ones.
An experienced estate planning lawyer can help you put together a plan with a will that allows you to control where your property goes when you pass in a way that ensures your property is left to those most deserving. Whether it be the homestead, a family heirloom, the family business, or the car in the driveway.
These are a few of the reasons, but far from the only, to get your estate plan in place before you have shuffled off this mortal coil.
1. You have minor children. Under Texas law, and the law of most jurisdictions, no one under the age of 18 (or otherwise meeting the legal definition of incompetent) may inherit property. If, heaven forbid, an accident or surprise illness takes you from your family too soon, depending on your situation, your children could be stuck needing to hire lawyers, paying guardians, etc., and being subject to the provisions of the Texas Probate Code and Texas Trust Code as to how the property will be distributed. A well-drafted will can include provisions for testamentary trusts that allow you to pass your property to the kids in the manner in which you wish and manage it until they are ready to take control, or you’re ready to give it to them. It allows you to keep being a great parent to your kids, watching out for their best interests, even after you’re gone.
2. You don’t have kids. If you don’t have children, the Probate Code still decides who gets your stuff, and in what percentage, without a will. And depending on your family history, every leaf on the family tree may show up to make a claim for something. Such a situation complicates the probate process and increases costs for your family. If you pass unexpectedly, at an early age, with no children, it can be simpler: usually, the property passes up the tree to your parents. But what if your parents are gone? Then the Texas Legislature has written out a plan to place your property the way they see fit. And we all know how well they can screw things up. Personally, I don’t trust the Legislature to know what’s in my family’s best interest. And depending on how convoluted your family tree is, it could take the entire staff of Ancestry.com to figure it out.
3. You have any property. At all. I don’t care if it’s just $50 under a rented mattress. As I’ve told numerous clients in countless meetings regarding their estate planning objectives, “I’m sure your family is the exception, everyone loves everyone, and no one will fight over your stuff when you’re gone, but let’s go ahead and get the estate plan in place, just to make sure, and to take any pressure off your beneficiaries.” The truth is that, if there is money at stake, the worst comes out in people, and fights erupt over even nominal estates. Whether it’s the siblings who decide the adopted sister “isn’t really one of us, anyway” or the kids who figure step-dad has no right to the house, after you’re gone there is a high probability someone will start a fight over your stuff. A well-drafted will can eliminate that problem and place your property in the hands of those loved ones you want to have it. In addition, if you have anything you want to go to a particular person, like a family heirloom or collection, the will can ensure the proper loved one receives that bequest.
4. You have a blended family. Or a non-traditional family. I don’t think any one of us has been so blessed to have been able to avoid at least some contact in our lives with divorce and/or remarriage, or other non-traditional family arrangements. It’s common, and many people, like myself, are part of blended families. But many of those situations aren’t like the Brady Bunch. And having children from a previous marriage complicates the effect of the intestate probate rules relating to the distribution of property. In other words, not having a will might leave out children or a spouse from receiving the property you want them to have. In particular, a second spouse might not get the homestead, depending on the characterization of the home. Or, the surviving spouse could end up being a joint owner with the kids from a previous marriage. And without the will, there’s nothing to lose for an unhappy child, sibling, parent, etc. who feels slighted and wants to fight the transfer of assets. Once again, the will can take care of this, let you transfer property to the loved ones you want, and can avoid the nastiness that sometimes occurs with the passing of a member of a blended family.
5. You’re the next Howard Hughes. Seriously, if you’re an anthropophobic billionaire recluse, call me. I won’t insist on shaking your hand, or even meeting you face to face. As long as your check clears, I’ll put together an estate plan with a will that will let you torment your relatives from the grave with petty conditions and care for your only real loved one, your dog Snookums, as only a member of a North Texan royal family should.
Even if none of these apply to you, they are just a few of the reasons you need a will. Right now. Call an attorney, get it done, and get it done right. Right now. And don’t let me hear about you using some do-it-yourself, fill-in-the-blank form kit from some nameless office supply company or online shill.
That’s like diagnosing and treating your possibly terminal illness by browsing WebMD. Except without all the scientifically factual and pertinent information. You, and your family, deserve better, doc.