Why is Having a Will So Important

It’s a question I am asked all the time by young adults who are just getting started with their life. When someone dies without a will, their assets are distributed according to a statutory formula that doesn’t specifically take into account their wishes and unique circumstances leaving their loved ones to deal with the details of settling their estate. Without a will, their estate is settled with the supervision of the court and a court appointed person called an executor or Personal Representative.  The executor will make decisions regarding your children and your possessions for you through a process called probate. This could take months, or even years, and add to your loved ones’ grief. It’s important to note that not all estates must go through probate. If it is considered a “small estate”, it doesn’t require court supervision to be settled. Don’t Be Like Most Americans: Get a Will Less than half of all Americans have even the most basic estate planning documents, and experts say that seventy percent of all Americans don’t have a will. It’s difficult to understand why so many voluntarily give up their freedom to decide what will happen to their assets when they die. However, it’s easy to get busy with your everyday life and make excuses why you put it off for another day. Before you get distracted with other priorities, think about how important you are to your family and answer these questions. If you answer “yes” to any of the following questions, then you need a will: Do I care what happens to my children when I die? Do I...

What About Estate Planning If You Never Married?

What do you do about estate planning if you never married? When you’re married, estate planning generally seems quite simple. Typically, the spouse who dies first leaves everything to the surviving spouse. When the surviving spouse passes on, the estate usually goes to the children. If you don’t put any estate planning in place, and you never married, then Texas intestate succession laws dictate what happens with your estate. The probate court will follow Texas laws. With no spouse and no children, the estate goes to the surviving parents and is divided equally. If you have no surviving parents, then your estate goes to your siblings and their children and is divided equally. If you had no siblings, then the estate passes on to more distant relatives. Estate Planning If You Never Married: Disadvantages of Intestate Succession There are several disadvantages to intestate succession. The main one is that you have no say in how your legacy is passed on. You may not even know the distant relatives and would have other preferences about who gets your estate. The other disadvantage is that determining an intestate estate requires more time and expense, which means less of the estate remains to be passed on. How Many Individuals Never Marry? It may come as a surprise, but the number of Americans who never marry is on the rise. According to the US Census Bureau, in 2014 there were 107 million Americans who were 18 years and older that were unmarried. This was 45 percent of all U.S. residents who were 18 and older. Of these unmarried individuals, 63 Percent who were 18...

What Happens When a Spouse Dies During Divorce? Or a Will Wasn’t Changed after Divorce?

Divorce in itself can be complicated and full of legal hurdles. However, what kind of legal entanglement are you in for when one spouse dies during divorce? Or when a will isn’t changed after divorce? Different states view this situation differently because laws in each state are not the same. For one thing, some states require long waiting periods before a divorce is final, even though the final decree has been submitted. Precedent Set by Pollard v. Pollard In Texas, the case Pollard v. Pollard set a precedent for the situation of a spouse’s death before a divorce was finalized. In this case, the wife died while the appellate court was hearing the divorce case. The case had dragged on for close to nine years with divorce being granted twice and then reversed and remanded twice. The Court of Appeals Texas, Fifth District in Dallas gave its final ruling on June 15, 2010. The court ruled that despite the length of the case, since no final divorce had been granted, the parties were married at the time of the decedent spouse’s death. The surviving spouse was a beneficiary or heir to the deceased wife’s estate. The probate court had jurisdiction to determine property distribution based on any estate planning documents the couple had or intestate laws if no estate planning existed. When Divorce Is Final but a Will or Trust Isn’t Changed Had the couple’s divorce been final, but a will or trust still existed that neither party changed, the estate would have fallen under a Texas statute, Treatment of Decedent’s Former Spouse. This statute states that a person is not a...

Estate Planning over the Holidays

Estate planning over the holidays is probably something you haven’t considered. Yet, many families take vacations and have family get-togethers over the holiday season. After all, the focus is typically on families during this time of year. Parents often don’t want to have the conversation about care preferences for their last days or how they want to pass on their legacy. Likewise, children don’t like to think about switching roles when the time comes for them to take care of their parents. But think about this. The holidays arrive, and you’re off to visit your parents who have dementia, Alzheimer’s or some debilitating physical condition that has left them incapacitated. If you failed to have the estate planning conversation earlier, you’ll struggle with knowing how to care for them and carry out their wishes. If they had their presence of mind, they would regret putting you in this situation. When you’re seeing early warning signs of forgetfulness or failing health in your parents, consider initiating the conversation to ensure estate planning is in place. Advantages of Estate Planning over the Holidays Loved ones are gathered together. Sometimes the holidays are your best opportunity for bringing together family members, who live in different parts of the country or world. With everyone together, it’s a convenient time for parents to tell their children about a trust, will or directive to physicians (living will). This conversation can assist your family in knowing your plans. Taking stock at the end of the year. The end of the year is a good time to take stock of any needed changes and make sure you...

What Kinds of Wills Do Courts Recognize in Texas?

We understand that drafting a will is difficult because no one wants to plan for death. Even so, by drafting a will, your family will know your decisions during a time when they’re emotionally burdened by loss. There are two main types of wills that courts recognize in Texas: an attested will and a holographic will. When you’re drafting a will you have important decisions to make, and the better you understand your options, the easier it is to make the right decisions. Our attorneys at C.E. Borman & Associates are glad to answer you questions and explain your legal options. Attested Will Based on Texas statutes an attested will has these requirements: It must be in writing. It must be signed in person by the testator (person creating the will). Or, it must be signed by a person the testator designates, in the testator’s presence and under his/her direction. Two or more credible witnesses who are at least 14 years of age must attest to the will by signing their names in the presence of the testator. Holographic Will A holographic will must be written in the testator’s own handwriting. No witnesses are required. Self-Proved Will Affidavit Sometimes called a self-proved will, this document is actually a self-proving affidavit that the testator subscribes to and attests to. The affidavit is attached or added to the will. Or, the affidavit is executed, attested to and signed by the testator and witnesses all at the same time while in the presence of an officer authorized to administer oaths. The self-proved will affidavit must also be in the form outlined by...

Ways to Avoid Probate

You often hear stories about estates dragging on in probate court or about large amounts of money being spent on the probate of the estate. Many estates never go through the probate process at all because there are legal instruments you can put in place prior to death to avoid probate. Here are a few to consider: Revocable Transfer on Death Deed. A revocable transfer on death deed  transfers real estate property to the person you designate in the deed upon your death, without the need for probate. To be valid, before your death, the document must be filed with the county clerk in the area where the property is located, and you may revoke it later if you change your mind. Joint Tenancy. When people own property in joint tenancy, the property automatically transfers to the surviving owner when the other owner dies. Under Texas law, the only condition is that the surviving owner must live at least five days longer than the deceased owner. This applies to vehicles, real estate, bank accounts and other property owned together. Payable-on-death Designations for Bank Accounts. For savings accounts and certificates of deposit, you can create a payable-on-death (POD) designation and whomever you designate can access the money directly after your death without having to go through probate. Survivorship Community Property. Spouses can sign an agreement to own property together so when one spouse dies, the surviving spouse directly owns the property without going through probate. Texas does not allow you to have transfer-on-death registration for stocks and bonds or vehicles. Get Legal Help with Estate Planning Our attorneys at C.E....