The worst part of my job is giving bad news to clients, especially when they are hurting from the loss of a spouse or loved one.

One of the most common pieces of bad news that I regularly must give is that a person no longer fully owns their home after their spouse passes away.

This situation is common in blended families where one or both spouses have children from a previous relationship, and the family neglected to do any estate planning by getting a will or some form of survivorship deed on their home.

When a person living in Texas dies without a will, the law states that they die intestate, and instead of a will or other document stating who owns the property next, Texas intestacy laws dictate ownership.

I think the simplest way to explain this is through a brief hypothetical scenario.

Howard has two adult kids from a previous marriage. He later marries Wanda, who also has two kids from a previous marriage. Together, they have one child and decide to purchase a new home together. Many years later, Howard passes away suddenly without any estate planning.

Wanda decides to sell the home she and Howard purchased and use the funds to purchase another home. Unfortunately for Wanda, she is only entitled to half of the money obtained from the sale of the home. She has the right to remain in the home as long as she chooses to live there and the adult children cannot force her out, but Wanda is only entitled under the law to half of the sale proceeds.

When a married couple purchases a home together in Texas, each spouse owns their share of the community property, which is one-half each. Under Texas intestacy laws, Howard’s three children are entitled to his community property, which is his half of the home.

It’s a bad situation for the surviving spouse and is all too common. The best way to avoid these situations is through proper planning.

Remember, estate planning is not just for the wealthy. Ensure your loved ones are cared for by setting up a proper Texas will and other estate planning measures.

Many people know what a will is, even if most do not have one. Some have seen video wills on television where a wealthy relative leaves them millions by saying so on an old VHS tape shown in an old lawyer’s imposing office. Others’ idea of a will is to purchase a fill-in-the-blank form from a dubious online source because they don’t think they need to pay a lawyer just to divvy up their things.

Simply put, a will is a written legal document which upholds a person’s intentions after they pass away when offered to a court for probate (which I will discuss in a future post). However, the fast-and-loose approach with Wills simply does not work in Texas. Our beloved Lone Star State’s laws require strict compliance for wills, which leaves little room for error.

The person making the will can choose to give specific items or general gifts such as money or things, or just let it all pass equally or in percentages to specific people or organizations called beneficiaries. Wills are powerful documents with a lot of flexibility in how things are distributed after one’s death.

Changing a will after it is made is not simple. Merely crossing out a gift to a family member that annoyed you during the holidays or scribbling things in the margin generally will not be effective to change the will. A will can be modified by an addendum called a codicil, but that can make the will somewhat inconsistent. Inconsistencies in wills can lead to probate litigation, which is a polite legal way of describing a big and expensive family courtroom battle often worthy of daytime television.

As a general rule, a will should be updated after a family event such as having children, children graduating high school or college, or a spouse or child passing away. I prefer to review estate plans every five years or after family changes and events for potential updates.

Many estate planning attorneys, myself included, prefer to just draft a new will since we no longer use typewriters to draft our legal documents and the extra time to change it is negligible. When preparing estate documents, simple and concise is always better if it is an option.

If a person dies without a will, or their will is found to be invalid, the person is intestate, and state law then dictates those that get the late person’s things and money. Most people think that if a married person dies, their surviving spouse gets everything, but that is often not true. Also, blended families are very common, and Texas intestacy laws provide for the late spouse’s children if they are not also those of the surviving spouse. I’ve known many people to be very surprised and offended by this legal reality, but that generally occurs when their spouse has already gone on to their great rewards.

However, if a person decides to do a full estate plan, it is altogether possible that a probate will be unnecessary, and the will serves as a catch-all backup document. It is possible for real property, bank accounts, and life insurance policies to all pass without court intervention, and that avenue can offer significant savings compared to the cost of probate and far less intervention from the family.

Get started on your estate plan today by giving me a call or sending me an email.