Monday, August 27, 2012

What Happens to My Property if I Die Without a Will in Texas?

If you die without a will, or if your will did not distribute all of your property, or if the probate court finds that your will is not valid, you are considered to be “intestate.”  Texas has adopted a complex system of statutes that determine what happens to your property if you are intestate.

First, the probate court must determine whether you were married and if you had any children or other living heirs at the time of your death.  There is a significant difference in how your property will be treated if you died while:

1.      Married without children;
2.      Married with children or other descendants and:
a.       All children are also children of your surviving spouse; or
b.      Some or all children are not also children of your surviving spouse;
3.      Unmarried with children or other descendants; or
4.      Unmarried with no children or other descendants.

Each of these situations can become complex, so they will be discussed in separate blog entries.

Wednesday, August 1, 2012

Texas: Does My Will Have To Be Written?

I’m going to have to give y’all the dreaded lawyer answer to this question: “It depends.”
Texas generally requires that every will be in writing – whether typed or in the Testator’s handwriting, or a mixture of both – in order to be valid for purposes of probate.

But Texas used to be a frontier state, where folks may not have learned to read or write, and not everyone had handy access to paper, pen and ink. So Texas does recognize an oral will (also called a “nuncupative will”) as valid and enforceable if, and only if:

1 - It is spoken “in extremis” – in other words, the person making the oral will (the “testator”) is on her deathbed during her last sickness and has no time, ability or opportunity to make a written will; and
2 - It is spoken to at least three witnesses who are over the age of 14 and who are not beneficiaries under the will.

An oral will can only dispose of the testator’s personal property – a disposition of the testator’s real estate / real property must always be in writing.  

And proving the terms of an oral will can be very difficult and very time-consuming (read, expensive) because they are strongly disfavored, even under Texas law.  In other words, the probate court will not make any presumptions to find the existence of a valid oral will.

For these reasons, it is highly recommended that every will should be written.

By: Cynthia W. Veidt, Attorney