To Will or not to Will, that is the question? Whatever 'tis nobler to let your family fight over what you've got and to suffer the slings and arrows of litigation fortune, or to properly have a Will prepared against the sea of problems called intestate succession. Hamlet and humor aside, a properly crafted Will can make life a lot simpler for loved ones after you're gone. It's a fact of life, most of us do not want to face our own mortality and put off having a Will prepared. For those of us who live and who will die in Texas, we are equipped to have one of the simplest probate processes in all of the 50 states. Everyone's situation is different. To create a plan for the distribution of your property upon your death that follows your wishes, you should consult with an attorney which practice includes handling Wills, Probates and Estates. Now, to take some of the mystery out of the legal lingo, I will attempt to define a few key words in the next few paragraphs.
WHAT IS A WILL? A properly drafted will is a document that allows you to direct the distribution of your property upon death in an economic and efficient manner.
WHY SHOULD YOU HAVE A WILL? If you die without a Will, the rules of intestate success dictate how your property will pass. If you do not have a Will, your estate will have significant additional expenses and delays in probate court.
WHAT IS PROBATE? Probate is the court procedure by which a will will be proved to be valid or invalid. Probate also includes administrating your estate and distributing your property.
WHAT IS AN INDEPENDENT EXECUTOR? An Independent Executor administers your estate with a minimum of court supervision and expense. Naming an Independent Executor in your Will simplifies the probate process. Essentially, an Independent Executor settles your estate and distributes your property according to the terms of your Will. A married person will often design his or her spouse as an Independent Executor. You should also evaluate one or more alternative Independent Executors to act in the event your first choice predeceases you or is otherwise disabled or unwilling to serve.
WHAT ARE THE LAWS OF INTESTATE SUCCESSION? The laws of intestate succession set out the manner in which an estate is distributed when a person dies without a Will. My earlier play on the words from Shakespeare's Hamlet mentioned "intestate success". Discussing intestation success is sure to put you to sleep. To keep you awake this time, I am only going to give the citations for Texas intestate succession law. If this topic interests you, you may want to look up Texas Probate Code Sections 37, 38, 42, 45, 47 and other code sections on the internet. This topic could be an article all by itself. Also, see the attached Texas Descent & Distribution pie chart on my website.
WHAT IS A SELF-PROVING AFFIDAVIT? All Texas Wills should contain a self-providing affidavit. A self-providing affidavit eases the probate process and eliminates the need for the witnesses to be present at the time of the probate hearing. Texas Law presumes a Will having a self-proving affidavit has been properly executed. Properly executed basically means that the testator signed the Will, that the witnesses signed the will in the presence of the testator, that the testator was over the age or 18 years of age and of sound mind, and that the witnesses were at least 14 years of age.
WHAT ELSE DO I NEED TO CONSIDER? My brief discussion has focused only on Wills. Our space is limited, but I must mention that some assets are not transferred by the terms of your will. Examples include assets that are controlled by contracts, such as, life insurance beneficial designs, payable on death bank accounts, IRA beneficiary designs, and assets held as Joint Tenants with Rights of Survival. That is another topic worthy of a complete article by itself. So ask yourself the question, have you checked all your beneficiation designs and bank account agreements laately?
Today we live longer and our longevity creates other important issues to consider. Who will make business and medical decisions for you if you are unable to make your own decisions? Who will handle your business if you have an accident, stroke, Alzheimer's, or sudden terminal illness? Do you want to pass naturally and not be placed on life support for a long time? Do you have health insurance and long term care insurance that will pay for your medical care needs? Do you have minor or disabled children? Who will take care of your minor or disabled children if you pass unexpectedly? These are just some of the issues to consider when creating an "Estate Plan" to handle your business and medical affairs both before and after you die. Remember the old saying: There are only two things that are certain, death and taxes. Just do it! There is no better time than now to have your Will prepared.