For better or worse, we all tend to put off writing a will and getting one executed (I’m guilty of it myself). So let’s say that the unfortunate happens, car crash, hunting accident, alien abduction or the dozens of other ways that we can depart this earth. Luckily, you die a Texan. Not luckily, you have no will. So, what happens to your stuff?
Intestate is the term that we use for when we’re dealing with an estate where there is not a will. Intestate Succession is pretty much just a list of people that are entitled to your estate if you pass with no will. Now, for the sake of this blog, we will only cover the very basics to give you an idea of what the set up is without a will. So, keeping things general, here is the way the list goes if you pass:
- Your children (Or their children/your grandchildren if your own child is already deceased)
- Your parents
- Your siblings
- Your grandparents
The list actually does go on from there but that is the basics of it. Now just to be clear, the more complex your family arrangement is the more that seemingly simple chart changes. For example, let’s say you have no spouse, no children, your parents have passed and it is just you, your brother and two sisters. The only thing is one of those sisters is only your half-sister. Well, according to the chart if you died with no will then all your property would flow to those 3 siblings, however, there is a catch. Normally it would flow equally but, a half sibling is only entitled to half a share of your inheritance according to Texas law. So really, instead of your property being split equally into 1/3 share for each sibling, we have to do some math. In the end it will turn into the 2 fully related siblings getting 4/10 (40%) of the estate each, and then the half sibling gets half a share so she would get 2/10 (20%). For some people that seems totally fair, some people hate their siblings and would be irritated any of them inherited their stuff as opposed to a cousin, or friends, or charity. Luckily for those people, the law has a solution called a will.
So how do wills work in Texas?
Again, keep in mind these are the broad strokes and definitely not the entirety of the facts about wills in Texas.
As far as wills go, keep in mind 2 different categories: A will with a bunch of witnesses that is legally recognized after you die and a will that is legally recognized after you die even if no one is in the room but you when it is written and signed.
Let’s go over that second category since it is way shorter. In Texas the only will that would be recognized that you signed without any witnesses would be a holographic will. As cool and sci-fi as that name sounds it really just means a will that is entirely written in your handwriting and signed by you. So if you take out a piece of paper, Take a pen and write a single sentence saying “When I die all of my property and assets go only to my oldest son, and nothing at all for the rest of those freeloaders.” Sign and date it and then sit it on your desk, that is an entirely valid will in the state of Texas. Now, as simple as that sounds, we lawyers HIGHLY discourage anyone from actually completing a holographic will because there are a lot of complexities to wills that even other lawyers don’t readily understand if they don’t carefully research, or work for years dealing with wills. For example, let’s say that you pass away, and to everyone’s surprise, your oldest son refuses to accept his inheritance. Well, no law forces him to accept it, so in that case the will becomes meaningless because the only person named in the will won’t accept the assets and it didn’t occur to you to designate a second person to get your stuff because you always assumed your son or his children would always be alive. Now a decent attorney could have drafted you a thorough will that planned for that event and still made sure your pesky other children don’t get their hands on your things.
The other style of will is the traditional one, usually executed with an attorney in his office and several witnesses. There are various ways to do it, various combinations of people that are allowed to serve as witnesses and places to include an attorney or notary in the execution as well. The big things to remember are that, in general witnesses should be people who are 14 years of age or older and people who are not getting things in your will. (Check with an attorney due to some COVID related allowances), Generally, someone has not “witnessed” you sign a will if they are not in the room with you, doesn’t matter if they are watching you live via Skype or on the phone with you as you announce you just signed it. In that same vein, don’t sign it and then bring it to someone to sign as a witness as they would then already be too late to say they witnessed you sign it. You’ve got to hold off until they are standing over you and can swear in court 30 years later that they remember watching you sign that paper and who was in the room and that their signature is the one on the bottom of the will on the witness line. These are more professional, thorough and generally give the best protections against fraud.
Think it through though
Now this whole area inheritance and wills is complicated, dark and a little sad. But, we all have to die so this is one area of the law you literally can not escape. So, it pays to be prepared, and I don’t mean Legal Zoom prepared! Get a lawyer to help you out with your will, you’ll be glad you did and your loved ones will be glad too (Except for the freeloaders).