Articles Posted in Will

For many Texans, the thought of their family members fighting after their death because of the contents of their will is something they cannot bear. In many cases, this fighting can lead to a family member contesting the validity of the person’s will. One solution to this potential issue is to include a no-contest clause within a person’s Last Will and Testament. A no-contest clause provides for the disinheritance of an heir if they challenge the validity of the will. Because there are details specific to a no-contest clause, along with the ability to contest a no-contest clause, Texans should be aware of the purpose and effect of a no-contest clause before incorporating it into their estate plan.

What is a No-Contest Clause?

A no-contest clause prohibits beneficiaries of the will from challenging its terms. In the will, the no-contest clause will state that if a beneficiary contests the will and loses this challenge, the beneficiary will receive nothing. This greatly disincentives people from contesting the will if they are merely unhappy with the terms of the will. Instead, beneficiaries are likely to only challenge the will if malfeasance or manipulation occurred. However, if a beneficiary challenges the will and is successful, the no-contest clause would be voided along with the will.

Because people craft Houston estate plans during different parts of their life, their situation may change, prompting them to change a portion of the will. Whether this is due to a divorce or the birth of a child, Texans often make changes to their estate plan. However, when this is done in hasty or improper ways, like writing a new will on a napkin, courts will often not recognize these improper revisions. Because of this—and to reduce expensive court battles—individuals need to diligently prepare and take the proper steps to change their estate plan.

After the passing of renowned journalist Larry King, the battle over his estate shows the necessity of modifying an estate plan correctly and not creating a handwritten will to replace it last-minute. According to a recent news report, because King and his wife were living apart—and a divorce pending—one of his children sought to become a special administrator of his father’s estate, although King’s will named his wife as the executor. Additionally, the son points to a handwritten will dated two months after King filed for divorce in 2019, which states he wanted all of his assets to be divided equally amongst his five children, and this should replace all previous writings. However, this will be a lengthy legal battle, as California, where King resided, has very specific requirements for a handwritten will to be deemed valid.

What Makes a Handwritten Will Valid?

When people start to think about the Houston estate planning process, they often think about doing it themselves. Either because of cost or other reasons, they believe this to be a better option than hiring an estate planning attorney. These estate plans, nicknamed DIY estate plans, are often riddled with mistakes and can be extremely expensive to fix. In fact, it is often far cheaper to hire an estate planning attorney to draft the plan first than to create a DIY estate plan that ultimately cannot be executed. Below are some common questions individuals have when debating whether to create an estate plan themselves, or to contact an experienced estate planning attorney.

What if I Have a Straightforward Situation?

People often assume they only need to hire an estate planning if they have millions of dollars in assets or have a complicated familial situation. However, these are not the only people that can benefit from utilizing an estate planning attorney because there is no such thing as a straightforward situation. Not surprisingly, every person and their loved ones are unique, so their estate plan needs to be unique too. DIY estate planning websites do not ask very specific questions about the client, instead just inquiring about their relatives and who they would want to care for their minor children if they were to pass away. This does not delve into the questions necessary to create an appropriate estate plan.

When a person dies with a legally valid will, their property is distributed according to their wishes as outlined in the will. However, when an individual dies without a will, the estate is distributed to the decedent’s heirs according to Texas intestacy laws. Regardless of whether there is a will in place, the process of distributing the deceased’s assets is called probate. However, the Houston probate process is often expensive and time-consuming.

Probate is the process in which a court recognizes a person’s death, resolves their debts, and distributes their property. For individuals with a will in place, this is a simple process where the judge recognizes the validity of the will and handles the property according to the decedent’s wishes. However, without a will, the process is a lot more complicated. In Texas, the distribution of property is determined by how closely a person was related to the decedent. In these cases, the nature and quality of the relationship are irrelevant. Sometimes, the decedent’s assets are not distributed according to their desires.

Intestate Distribution

Despite the importance of having a Houston estate plan, over 60% of people do not have a will. Those without a will often cite several reasons, including that they do not believe a will is necessary, and the cost of creating a will is too high. These misconceptions stop people from creating a will or estate plan, when it is actually vital for everyone – despite age or health – to have one in place. Below are common misconceptions that many Texans have about estate plans, and why people should contact an estate planning attorney right away.

Misconception: “I’m Young, I Don’t Need an Estate Plan”

Many people – even those with families – do not believe they need an estate plan because of their youth. Unfortunately, tragedies occur every day, and it is impossible to predict the future. If a person owns any property or assets – regardless of their age – they should have an estate plan in place, so their wishes are honored after their passing. Otherwise, the individual will have no say over how their assets are bequeathed. When a person dies without a will in Texas, a judge will decide who inherits the assets. Although the assets are often given to the deceased’s spouse, children, or relative, this process is complicated as the court evaluates the assets and necessary evidence.

In Texas, a Last Will and Testament, commonly referred to as a will, allows a person to designate and gift property and other assets to a beneficiary. The beneficiary may be an immediate family member, relative, friend, or other charity or institution. There is a mistaken belief that wills are only necessary if a person has significant funds or property. However, in reality, a will is a crucial tool to distribute even modest savings and personal items. A will allows a person to clarify what they want to be done with their property, such as their home, investments, retirement plans, insurance benefits, and personal mementos. Furthermore, wills allow a person to appoint a guardian for their minor children.

There are many reasons people forego drafting and executing this critical document. Some hesitation may stem from the psychological and emotional connection between wills and the thought of passing away. However, putting off a will until a person is emotionally ready can have long-term consequences for their loved ones. If a person dies without a will, their loved ones may need to go through a lengthy and complicated probate process. The probate process can be emotionally charged and cause loved ones to experience hurdles and financial setbacks.

For example, the recent death of beloved actor Chadwick Boseman has shed light on the consequences of not having a will. According to a recent CNBC news report, the 43-year-old who died after battling colon cancer died without a will, leaving his estate’s distribution to the courts. His wife requested the court name her as the administrator of her deceased husband’s estate. Although some of the late actor’s accounts, such as qualifying retirement accounts and life insurance, may not need to go through the probate process.

Getting to Know the Texas Intestate Laws

As we’ve mentioned in previous blog posts, a will is the cornerstone of any Houston estate plan. In a will, a person can determine what will happen with their property. However, not having a will does not mean that someone’s property will end up with the state. Instead, the Texas intestate laws dictate how the property will be distributed.

Texas intestate laws determine how an individual’s property is passed on. Rather than take a look at subjective factors such as close relationships or the deceased’s intentions, the intestate laws look only to the surviving family members of the deceased. This is not necessarily a problem if the deceased has no children, or family members all can agree on what the deceased’s intentions were. However, that is not often the case.

Although creating a will in Texas may not seem vital in the moment, passing away without having a will in place can have major consequences. Intestate succession laws dictate where a person’s assets and property go if they die without a will. There are many rules surrounding intestate succession. While these are only a few, below are commonly asked questions about what happens when a person passes away without a will or estate plan in place.

What Assets Are Impacted by Intestate Succession?

When a person dies without a will, their assets will go to their closest relatives. However, not all assets are affected by intestate succession laws. These non-affected assets include life insurance proceeds, funds in a retirement account, and property jointly owned. For these assets, they will pass onto the surviving co-owner, or named beneficiary, even when there is no will in place.

A last will and testament, or more commonly referred to as a “will,” is a legal document that provides a person with the opportunity to decide how their property and other assets will be distributed after their death. Under Texas law, if a person does not have a will, their belongings will be subject to Texas intestacy laws, which may be contrary to the person’s actual wishes. A legally binding will is an effective way to ensure that a person’s last wishes are appropriately effectuated. Fortunately, Houston probate courts typically work efficiently to ensure that wills are quickly validated and accomplished.

In some cases, a simple will is enough to distribute assets and belongings, but Texas allows wills to include trust directives and tax-planning assistance. Wills can also include the appointment of guardians to children and pets, asset distribution, and help people avoid real-estate complications. In cases where a person does not create a legally binding will, Texas law dictates that their assets and possessions pass through intestate succession laws.

Under Texas’ intestacy law, intestate succession depends on the deceased’s surviving family members. These are the most common scenarios:

Computer security
With COVID-19 impacting more and more Americans, individuals across the country are scrambling to set up wills and end-of-life directives.

Over the last two weeks, online will companies have seen an explosion in users, according to the article, “Coronavirus Pandemic Triggers Rush by Americans to Make Online Wills,” published by CNBC.com.

However, as online wills grow in popularity, Houston estate and elder lawyers increasingly caution against using them, for several reasons.

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