What Problems Arise if You Die Without a Will?

Man with head bowed and hands on head

In Texas, if you die without a Will, then you are stuck, so to speak with what the State of Texas has determined should be the distribution of your estate. This situation can also arise when you have an illness that would raise a question of whether you had testamentary capacity to create a Will at the time you signed it.

If you die without a Will in Texas, then your estate will pass by what is called “intestate succession.” What that means is that Texas has effectively written a Will for you which is set out in the Texas Estate Code by setting out to whom and in what proportions your estate will pass. You may or may not agree with what Texas believes should happen to your property in that event, but if you have no Will, that is what will happen.

What Is the Difference Between an Independent Administration and a Dependent Administration?

Most Wills in Texas state that the Deceased Chose for Their Estate to Be Probated as an Independent Administration. An Independent Administration means that once the Court admits the Will to Probate and the Executor “qualifies,” which means signs an Oath and post the required bond, that the estate is no longer managed by the Court. There are still certain requirements that have to be met, such as giving notice to creditors and filing an inventory or an affidavit instead of an inventory, but other than those few things, the estate is administered by the executor and without direct Court supervision or intervention. Generally, in an independent administration, only one hearing is necessary and the case can be handled very cost and time efficiently.

If there is no Will, unless there is an agreement by all the beneficiaries of the estate to the contrary, the estate has to be managed in what is called a “dependent administration,” which means it is administered by the judge who is in charge of the case. In a dependent administration between 4 and 10 court hearings are necessary, including preparation and filing of documents with the court, preparation for the hearings, attendance at the hearings, and preparation of the order of the court from each of those hearings so that the judge can sign an order telling the administrator what to do. A dependent administration is very costly.

However, every case is different. Because of the complexity of some estates, such as because of the way the person died or because of problems that the person’s estate had prior to death, the estate is better served with the supervision and support of the court–a dependent administration, even if there was a Will that stated the deceased person wanted an Independent Administration. Those questions need to be asked of your attorney after your attorney has been given the facts of the case.

Often When There is No Will, There Are Questions About Who Are the Members of the Deceased Person’s Family.

If there is a question about who the deceased person’s heirs may be what is called an heirship proceeding is required. An heirship proceeding can be somewhat expensive. If it can be handled efficiently, it is not usually exorbitantly expensive or time-consuming, but it does require additional pleadings, an additional attorney appointed by the Court to research and represent any unknown heirs, and a court proceeding. With an accurate Will that names the members of the deceased person’s family, an heirship proceeding will generally not be necessary.

How is a Deceased Person’s Property Divided When They Do Not Have a Will?

In a Texas Will, a person can give away all their property in the way they see fit. The deceased person’s property will include their ½ of the community property (if they are married) and all of their separate property. If there is no Will, the way the property is distributed, or what property is affected by a life estate, is determined by whether the property is community or separate

When you don’t have clear guidance about certain pieces of property, a lot of time can be spent determining whether the property is community or separate. Determining the character of property (whether it is community or separate) can be a costly endeavor requiring extensive work by tracing experts such as C.P.A.s. Having a conversation with an attorney in preparation of a Will enables the client and the attorney to explore ways to avoid the time and cost of having to trace property after a person dies, saving time and money that can better be used by the person’s heirs.

When There are Multiple Marriages and Children from Those Marriages, a Wedge Can be Driven Between the Children and the Deceased’s Surviving Spouse.

There are often complicated questions, especially with multiple marriages and families or late-in-life marriages, as to what property should have been given to whom. For instance, as stated above, a deceased’s person’s portion of the community property, which is accumulated in the second marriage will be distributed to the children of the first marriage if a person dies intestate. However, the widow from the second marriage has what is called a probate life estate, which means she has the right to remain in the couple’s residence for so long as she wants to stay there. In many marriages, one of the biggest assets they have is real property. The children of the first marriage, who may or may not get along with the new wife, will not be able to access their portion of their deceased parent’s estate for some time because the widow is holding it in her life estate.

If Someone Dies Without a Will What Role Does a Pre-Nuptial (Pre-Marital) Agreement Play in the Probate Case?

There are many types of prenups out there, but the general answer is that if there is a pre-nuptial agreement, it will probably play a role in the probate case. Most of the time a prenup is done to override the community property laws of a state. If there is no community property, then all of the property at time of death will be distributed to the heirs according to the separate property rules. A surviving spouse’s life estate cannot be overridden unless the pre-nuptial agreement specifically stated that was the parties’ agreement. The Texas Estates Code also provides for a spouse’s allowance, which, as it states, provides money from the deceased person’s estate for a period of one year for the surviving spouse; that will not be overridden unless the parties in the prenuptial agreement agreed that it would not be paid. Most prenuptial agreements do address these things, but because they are contractual in nature, every one can be unique.

The cost of having a lawyer prepare a Will, even though it might seem expensive at the time, is very little compared to having to hire a lawyer to probate an estate when there is no Will or when there is a contested estate. If you are thinking about doing a Will but have a accident and end up in a hospital bed before you get it done, you are creating a very high possibility that there will be a question of whether the Will was prepared when you have the ability to make it (testamentary capacity), which may result in a Will contest. Whether you have testamentary capacity, or not, and that can be very draining on your estate to your heirs.

The bottom line is: Don’t Die Without a Will, and make sure you get it done sooner than on your deathbed.

Want to Read More?

  1. What is Worst Time and the Best Time to Do Your Will?
  2. Why Do You Need a Will?
  3. When Is a Will Contested?
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