Do You Know Who Gets Your Property If You Die Without a Will?

Well, you may think that you do. And most of you are probably wrong. At least under Texas law.

Recently, I overheard a well-educated financial expert tell his clients that they didn’t need to have a will, because Texas is a community property state and the surviving spouse will inherit everything, anyway.

After figuratively beating my head against a wall for the next five minute, I decided to revisit this misunderstood topic on our Blog instead.

Everyone needs a will – here are a few reasons why:

First, don’t assume you’ll have a surviving spouse. Married couples could both die during an accident, or within 30 days of each other, or after a divorce - any number of unfortunate circumstances may result in the law failing to recognize a “surviving spouse.”

Second, your surviving spouse does not automatically inherit everything you own. Other family members, particularly children (whether they are also children of your surviving spouse or not), will also inherit certain types of property under Texas law. Add in children from a prior relationship, and your surviving spouse may receive an unpleasant surprise.

Third, not everything you own is legally characterized as “community property” just because you happen to be married. And separate property is treated differently under Texas laws than community property.

Fourth, Texas’ statutes governing the distribution of your property if you die without a will (called being “intestate”) are very confusing. The Travis County Probate Court has a color-coded pie chart that helps demonstrate this complexity quite nicely: http://www.co.travis.tx.us/probate/pdfs/DnD_diagrams.pdf.  

Fifth, your bank accounts and other investments may not pass by beneficiary designation or a right-of-survivorship clause, which means a probate court will need to enter a judgment determining the identity and inheritance rights of your legal heirs. That process will hold up access to your funds at a time when they are most necessary for your surviving family members. 

Why risk an unwanted result, when you can simply prepare a will that clearly tells everyone how to handle your property after you pass away? 

By: Cynthia W. Veidt, cindy@lpvlaw.com

Adding a Self-Proving Affidavit to Your Will

In Texas, a self-proving affidavit is not required to make your Will valid, but it does make your Will easier to probate.  When properly executed, the self-proving affidavit dispenses with the need for any live witnesses to testify in court at the hearing on an application to probate your Will.

 

Effective January 1, 2014, Texas will no longer require a separate “self-proving affidavit” on a person’s Will.  Until then – because of some confusion concerning the effective date of the various changes made to Section 59 of the Texas Probate Code by the Texas Legislature – we believe that it is best to include a separate self-proving affidavit after the signature block where you and the two witnesses have attested to your Will.  

As of the date of this blog entry, Texas Probate Code Section 59 contains the following statutory language for a self-proving affidavit to a person’s Will:

THE STATE OF TEXAS

COUNTY OF ________________

Before me, the undersigned authority, on this day personally appeared _______________, _______________, and _______________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said _______________, testator, declared to me and to the said witnesses in my presence that said instrument is his last will and testament, and that he had willingly made and executed it as his free act and deed; and the said witnesses, each on his oath stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is his last will and testament, and that he executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of the said testator and at his request; that he was at that time eighteen years of age or over (or being under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service) and was of sound mind; and that each of said witnesses was then at least fourteen years of age.

___________________________

Testator

___________________________

Witness

___________________________

Witness

Subscribed and sworn to before me by the said ____________, testator, and by the said ________________ and _______________, witnesses, on this ______ day of ________________, 20____ A.D.

(SEAL)

(Signed)           ___________________________

(Official Capacity of Officer)

It is strongly recommended that you consult with an attorney prior to signing any legal document, including your Last Will and Testament; this will help ensure that the document meets current statutory requirements and that you understand the significance and consequences of each provision and term contained in the document.

By:      Cynthia W. Veidt