You Already Have A Will

"YOU ALREADY HAVE A WILL WHETHER YOU KNOW IT OR NOT.”

Yes, under §38 of the Texas Probate Code, the Texas State Legislature has enacted a statute designating to whom your property passes when you die without having prepared a last will and testament of your own. So if you don't take the initiative to prepare a will, the State of Texas has one ready and waiting for you at the time of your death.

I've found in my 17 years of practice it is a common misconception of clients that if a person dies without a last will and testament everything automatically passes to the State of Texas. I cannot recall a situation in my own practice where this has ever occurred. In fact, the statutes covering decent and distribution often result in the passage of property from a decedent’s estate to those family members whom we would ordinarily leave property had we prepared a will of our own (i.e. spouses, children, mothers and fathers). So to this extent, more often than not, the will prepared for us by the State of Texas does a pretty good job in passing property to those family members whom most people, most often, would want their property to pass at the time of death.

So why do I need a will if the State of Texas has already written one for me? My answer to this is that one size does not fit all. A will is a legally binding document representing a personal expression of what you want done with your property at the time of your death. It should be finely tailored to your personal desires and family situation. The will prepared by the State of Texas is strictly “off-the-rack”. It represents an expression of what the State feels most people would ordinarily want done with their property at the time of death. This expression may be completely at odds with your personal desires and family relationships. Problems routinely occur when there are children from more than one marriage, when property passes to a family member legally incapacitated by age or infirmity, or when the only living relatives are distant family members. A second consideration is money. In most situations it simply costs more to handle an estate when you die without a will and leave it up to the State of Texas to determine how your property passes. If the probate court determines a full administration of your estate is necessary attorney's fees, court costs in the form of filing fees and other expenses such as bond premiums can quickly add-up.

Remember, it’s your property; you worked hard all your life to accumulate the things you have; make sure you have a say in what happens to your property when you die; have a will prepared that addresses your desires and your family situation; don’t rely upon the will prepared for you by the State of Texas.

Probate Attorney, Gregory G. Heffelfinger

The loss of a family member is a difficult enough situation. Compound that loss with the stress of having to deal with courts, banks, insurance companies, retirement plan administrators, and creditors and the situation may seem overwhelming. Some simple planning can greatly reduce the stress and make an overwhelming situation at least manageable during this difficult time. I often tell my clients that if they never have to see an attorney for any other reason, they should at least see an attorney to have a will prepared. In my opinion, with very few exceptions everyone needs a will. While planning for death is something none of us like to think about, the consequences of procrastinating and having no will or estate plan may place an even greater emotional and financial burden on your family. Below, you will find some helpful information. The information presented is not intended to take the place of your attorney’s counseling and recommendations, but rather is intended to provide you with some “nuts and bolts” information in a very readable format.

Papers and articles to assist you on legal issues A Typical Probate and Independent Administration You Already Have a Will Whether You Know it or Not Essential Provisions of a Texas Will Independent vs. Dependent Administration

About Gregory G. Heffelfinger Gregory G. Heffelfinger is an attorney who has practiced law in Houston, Texas since 1983. He is a member of the of the State Bar of Texas, State Bar of Michigan, and licensed to practice before the United States District Court for the Southern District of Texas. Since 1983 Mr. Heffelfinger has provided legal counseling in wills, probate and estate planning to families utilizing the services of Earthman Funeral Directors. Mr. Heffelfinger can be reached via email or call him at (713) 722-7163.