| WILLS AND ESTATES
Please do not be so rude as to die without a
will in Texas. Your spouse, children, grandchildren, uncles, aunts and cousins to the
third-degree will curse you unto the seventh generation. This is particularly true if you
own real property and/or have children.
- Wills executed in Texas can be relatively easy to probate. If
the will contains proper language appointing an "independent executor" and
contains "self-proving affidavits" from 2 witnesses over the age of 14, then
your estate should be in an out of probate in a jiffy. If you do not have a will, or it
does not appoint an independent executor, or is not self-proving, in that event THE
LAWYERS WILL GET ALL THE MONEY!
- An independent executor need only make application to the
court for admission of the will to probate, and do an inventory and appraisement. If no
debt or taxes are due, the estate may then be distributed to the devisees (devisee is a
fancy lawyer word for "heir"). Technically heirs and devisees are different, but
you will have to pay me to explain all that.
- Dependent Administration:
Where a will does not contain language appointing an independent
executor, the will may be admitted to probate, but every penny spent and/or the court at a
hearing must approve move made by the administrator. This could get a tiny bit expensive.
- Self-Proving Affidavits:
If your will does not have a self-proving affidavit, it will have to
be proved up in court by the testimony of the witnesses to the will. If your will was
executed in Chicago and you move to Texas and die without executing a new will or having
it re-witnessed by Texas witnesses, then your friends in Chicago will be slightly
inconvenienced by having to fly to Texas for a probate hearing (if they have survived you
and can be found). Obviously, another needless expense to the estate.
- Trusts:
Even
if you leave all of your property to your spouse, be sure to create a trust for your
children. Then, if your spouse dies before you do, your estate may be easily administered
by the independent executor and trustee for your children.
- Authority To Sell Real Estate:
Your will should give your independent executor
the express authority to sell and/or mortgage your real estate. If it does not, and the
executor attempts to sell the real estate, the transaction will fall into a deep black
hole. Many Texas probate courts will only hear and approve sales, which take place in a
dependent administration. They consider that they do not have the authority to approve
sales out of an independent administration. Title insurance underwriters, however, are of
the opinion that unless the will specifically authorizes the executors who sell real
estate, that court approval must be obtained. Catch-22.
B. INTESTATE SUCCESSION (or who gets my stuff
if I die without a will?):
If you died prior to September 1, 1993, these
rules do not apply to you, as the laws changed on that date.
- COMMUNITY ESTATE:
a.
The community estate passes entirely to the surviving spouse
if (i) there are no children or descendants of children of the deceased or (ii) all of the
surviving children and their descendants are also children and descendants of the
surviving spouse.
b.
If the deceased spouse has children from a prior marriage,
then the estate is divided in half. The surviving spouse takes one-half and all children
of the deceased spouse take the other one-half.
2. SEPARATE PROPERTY:
a.
No surviving spouse:
- First to children and their descendants; if no children or
descendants, then to parents in equal portion. If only one or no parents survive, then the
estate is divided in half and passed one-half to each surviving parent and one-half to be
divided among brothers and sisters and their descendants. If there are no brothers or
sisters or descendants, then the entire estate goes to the surviving father or mother. If
neither father nor mother survives, then the whole estate goes to the brothers and sisters
and their descendants.
b.
Surviving spouse:
- If the deceased has a child, the surviving spouse takes
one-third of the personal estate, and a life estate in one-third of the lands of the
deceased. The remainder goes to any children and/or their descendants. If the deceased has
no children or descendants of children, then the surviving spouse takes all of the
personal estate and one-half of the lands. The other half of the lands passes according to
the rules of descent and distribution; however, if there is neither a surviving mother or
father or brothers or sisters or their descendants, then the whole estate passes to the
spouse. Got that?
C. There are numerous other rules applying to
intestate succession. As you can see, they are complicated and not always clear. MAKE A
WILL! |
