Why is Preparing a Will So Important?

A last will and testament spell out how your assets and property are to be divided and distributed upon your death. If you’re an adult in Texas and you do not have a will, reach out to a Texas estate planning attorney for the help you’ll need to prepare your last will and testament.

If you have not prepared a last will and testament, what will happen to your property and assets? What are the legal requirements for a last will and testament in Texas?

If you’ll continue to read this brief discussion of wills and inheritance laws in this state, you will learn the answers that you and your loved ones may need.

What is Community Property and What is Separate Property?

If you pass away in Texas without preparing a will, you have died “intestate.” This means that your property and assets will be distributed according to the rules set forth in the Texas Estates Code. If you’ll keep reading, you’ll see that these rules are often complicated and confusing.

If you die while you’re married, the Texas Estates Code distinguishes your separate property from your community property. Your separate property is basically anything that is not community property, such as gift, inheritance, personal injury judgment and what you brought into the marriage. But it gets messy because, without a prenup (Texas prenuptial agreement), income and certain types of growth of separate property may in fact be community property. That’s why you really need an attorney to help sift through your situation.

If you pass away married and intestate in Texas, community property and separation are handled differently.

If You Die Without a Will

If you die without a will, if you are survived by your children and your spouse, and if your spouse is the other parent of your children, here’s how your assets and property will be distributed under the Texas Estates Code:

  1. Your spouse inherits all of your share of the community property, BUT
  2. For separate real property (separate real estate), your children inherit it all, not your spouse, except the surviving spouse vests in a 1/3rd life estate
  3. For separate personal property (all that is not real property), your children take 2/3rd’s equally and your spouse takes only 1/3rd.

However, it’s a very different story if you have children from a different relationship.

If You Die Without a Will and you have children from a different relationship

When you have children from a previous marriage or a different relationship where your surviving spouse is not the legal parent of such child(ren) , the Texas Estates Code provides that:

  1. Your spouse inherits NONE of your share of the community property, AND
  2. For separate real property (separate real estate), your children inherit it all, not your spouse, except the surviving spouse vests in a 1/3rd life estate

What if You Die Divorced, Widowed, or Childless?

If you die divorced or widowed, your children inherit and divide all of your assets and property equally, with this exception: If one of your children passes away before your death, and that child had your grandchildren, those grandchildren inherit and equally divide that child’s share of your property and assets.

If you die married but without children, your spouse inherits all of your separate non-real property (property that is not real property) and all of your share of the community property.

But your spouse would only get ½ of your separate real property and the other half would go to your parents if they are then-living, but if both parents are not then-living, then ¼ to the then-living parent and ¼ to your siblings if you have any then-living.

everything, unless you have living parents and/or siblings. In that circumstance, your spouse inherits fifty percent of your half of the community property and fifty percent of your personal assets, and:

If You Die Unmarried and Childless

If you have both parents then-living, then ½ goes to your mother and ½ to your mother, but if one parent is not then-living, then ½ so your surviving parent and ½ to your siblings, but if you’re not survived by either parent, then 100% to your siblings.

As you can see, it can get confusing quickly, so don’t let state laws dictate who inherits your life savings, but instead put an estate plan into effect that spells out who gets what. It’s only your life savings that we’re talking about 🙂

If you die without a will and with no relatives by blood, marriage, or adoption, your property and assets may go to the State of Texas. Such cases are exceedingly rare because the Texas Estates Code requires the transfer of your assets and property if anyone is even remotely related to you.

How Can This Confusion Be Avoided?

If you’ve read this far, the importance of preparing a last will and testament – or a comparable estate planning document like a trust – is clear. In Texas, when you die without a will, you have no say over how your assets and property may be divided and distributed.

Adding to the complications, hostility could erupt among your family members, and their claims could end up as contentious legal battles. However, all of this can be avoided by preparing a last will and testament now with the guidance of a Texas last will and testament lawyer.

What Are the Legal Requirements for a Will?

Here’s what Texas law requires for a valid last will and testament:

  1.  You must be at least 18 years of age, or married, or serving in the U.S. military.
  2.  The will must be in writing and it must be a printed, hard copy.
  3.  You must be of sound mind and memory.
  4.  Your will must be made voluntarily and freely.
  5.  You must sign your will in the presence of two witnesses who are at least 14 years old.

Why Should You Choose Mike Massey Law?

Texas estate planning attorney Mike Massey will help you prepare a last will and testament that’s right for you and your loved ones, that clearly expresses your wishes, and that will be enforced, if necessary, by a Texas court.

Wills and trusts are important legal documents that can significantly influence your family for many years after you’re gone, so it’s important to work with a Texas last will and testament lawyer who has substantial experience preparing these documents for his or her clients.

The team at Mike Massey Law can create an effective, enforceable last will and testament that addresses your personal situation and your wishes clearly and precisely. No one can predict the future, but you can prepare for it – now.

Your first consultation with us is provided with no cost or obligation. Schedule that consultation by calling Mike Massey Law in Houston at 713-489-7360 or in Austin at 512-400-4430.