Do you need a will?

If you are like most people, you probably don’t have a will – a recent study found that less than half of all adult Americans (only about 45%) have a will or other estate plan.  “Why do I need a will?” you might say, “If I die, won’t my spouse (or kids) get everything?”   Maybe – maybe not.

In Texas, if you die without a will (intestate), or if your will is declared invalid, everything you own at the time of your death – your estate – will be distributed according to the Texas Probate Code.  The law will determine your heir(s), based on how closely they were related to you by blood or marriage, and not by the nature or quality of your relationship with them.

Here is how it works.  Under Texas law, all of your property is considered either separate property or community property.  Separate property includes any property you owned before marriage, or which you acquired during the marriage by gift or inheritance, plus certain other assets (for example, damages awarded to you in a personal injury lawsuit).  Community property includes everything else – all property acquired by either spouse during the marriage that is not considered separate property.

Property is also further classified as either real property or personal property.  Real property consists of land and improvements to land (such as homes or other buildings), plus oil, gas and other mineral interests.  All other property, such as cash, bank accounts, investments, vehicles, jewelry, clothing and furniture, is classified as personal property.

If you were to die without a valid will or other estate planning document, this is how your estate would be distributed under the Texas Probate Code:

SRP = Separate real property

SPP = Separate personal property

CP = Community property (your share)

If you are: Your property will be distributed:
Single/divorced, with no children All to parents1
Single/divorced, with children All to children (in equal shares)2
Married, with no children SRP:  1/2 to spouse, 1/2 to parents1

SPP:  All to spouse

CP:    All to spouse

Married, and have children with surviving spouse SRP:  All to children (in equal shares)2

SPP:  1/3 to spouse, 2/3 to children

CP:    All to spouse

Married, and have children from another relationship SRP:  All to children (in equal shares)2

SPP:  1/3 to spouse, 2/3 to children

CP:    All to children (in equal shares)

1 If either or both parents are deceased, their respective share is divided equally between siblings

2 Surviving spouse retains 1/3 interest during his/her lifetime (life estate)

Dying without a will often leads to undesired results – you take the risk that your property may not be inherited as you would like.  For example, you may prefer to leave all of your property to your surviving spouse to provide for and take care of your children – but this may not happen without a will.  Having a will is a particularly important consideration in a “blended” family, where you and/or your spouse have children from previous marriages. You may be close to your stepchildren, and want to provide for them as well – but under the Texas intestacy statutes, they would inherit nothing if you died without a will.

Other disadvantages of intestacy include costs and delays.  A court proceeding will likely be required to determine your heirs, and an administrator may have to be appointed to settle your estate and distribute your property.  The process could tie up your assets for an undetermined period of time, and may also result in significant legal fees, court costs and frustration for your loved ones.

So, do you need a will?  The decision is yours…