Well, it depends.  If you’re like most people though, you have at least one reason to have a will.  You should consider a will if any one of the following things apply to you:

• You have minor children
• You are married
• You are not married with or without a life partner
• You have been married more than once
• You are a foreign national or married to one
• You own real estate (even if it’s just your house)
• You simply don’t know what would happen to your property if you died right now

Only in very rare situations does a will NOT make sense.  Even if you think you do not need a will, you should consult an estate planning attorney to make sure that your estate will be taken care of in a cost-effective manner.  Finally, even without a will, a power of attorney for health care and/or financial matters can protect you should you ever become incapacitated.  Give yourself some real peace of mind and get started on your estate plan today.

Assuming you die in Texas, your property would be split up by the court according to Texas state law as follows:

If you are not married (including having a life partner, widowed or divorced):

Your children will inherit all of your property equally. If any child has died before you, his share will go to his children. If he has no children, it will go to your surviving children. If a child of a deceased child is also deceased but has left a child of his own (your great-grandchild), that great-grandchild will get its parent’s share of your estate, and so on.

If you have no children, your father will inherit half of your property, and your mother will inherit the other half. If either parent is deceased, your siblings will inherit that parent’s share. If a sibling is deceased but has left a child (your niece or nephew), that child will inherit its parent’s share, and so on. If a sibling is deceased and has left no children, the surviving siblings will take that sibling’s share. If neither of your parents nor any of their descendants survive you, your grandparents will inherit your estate equally. If either grandparent has died before you, their descendants (your aunts, uncles, and cousins) will inherit your estate.

If you are married:

If all of your children are also the children of your current spouse, then your spouse will inherit all of your community property. Your children will inherit a two-thirds interest in every item of your separate property. The remaining one-third of each item of separate property will go to your spouse, but if the item is real estate, it returns to your children upon the death of your spouse.

If you have children from a previous marriage, your children will inherit all of your half of the community property. Your spouse will keep her half of the community property. Your separate property will be distributed the same way as in the previous paragraph.

If you have no children, your spouse will inherit all of your community property. Separate property that is not real estate will also go to your spouse. Separate real estate will go half to your spouse, one fourth to your mother, and one fourth to your father. If either parent is deceased, that parent’s share will be inherited by your siblings if they survive you. If none of your parents or siblings (or their descendants) survive you, your spouse will inherit all of your separate real estate.

If your spouse survives you, and is the biological parent of your child, then your spouse will automatically have custody of your child. However, if your spouse were to die with you in a common accident, or if your spouse is not the biological parent of your child, then there is a chance that a judge would have to decide who takes custody of your child. In this case, any interested party can request custody—including family members that you may never have wanted to raise your child. You can avoid this entire situation by designating who you want to take custody of your children should something happen to you. You can accomplish this designation in your will or in a separate document just for the purpose of naming a guardian for your children (called a Designation of Guardian).

You may have already named a beneficiary on your bank accounts or your life insurance policies. If that person is alive when you pass and can legally receive the funds (over the age of 18) they will get the funds as you intended. However, if for any reason, the bank or insurance company cannot give the money to the person you named, then your executor will have to head to court to determine the future of your money. However, if the beneficiary of your accounts is a minor child, things could get difficult. If a minor child inherits any sizeable amount of money, and it is not put into a trust, he or she will likely need a guardianship of the estate established on their behalf.  Guardianships quickly become expensive and time consuming. A proper trust set up can protect you from this problem.

Estate taxes are federal taxes that must be paid after someone dies and their estate exceeds the federal exclusion amount, currently $5.34 million for single people (in 2014) and $10.68 million for married couples. Texas does not have a separate estate tax. If your estate exceeds this number, you will need to pay estate taxes at a rate of 40% on the amount of your estate which exceeds the exclusion amount. If your estate is valued close to the federal exclusion amount, you should consider talking with an estate planning attorney to see if you can minimize the tax burden on your estate.

By having a will, you save your estate a substantial amount of money. Without a will, the court will not know who your heirs are and will likely have to institute an heirship proceeding. Many local attorneys begin their fees in the $4000-5000 range and go up from there to assist with an heirship proceeding. You may be able to qualify for a small estate administration if your estate is less than $50,000 (not including your homestead and other non-probate property). However, if any of your property goes to a minor child, that child might need a guardianship set up, which increases costs.

A living trust is a legal instrument that allows the property held by the trust to skip over the probate process. The living trust—not you individually—holds title to your assets such as your home or investment accounts. Therefore, when you die, you don’t legally own anything because your living trust owns it and it will then pass to the people you name as beneficiaries of your trust. Living trusts are very popular in states with very difficult probate procedures such as California. However, Texas’ probate system provides a much more streamlined approach. In fact, there are few benefits that a living trust can provide that a properly drafted Texas will cannot. The primary reasons to still consider a living trust if you live in Texas are:

You own property in another state

You have serious privacy concerns

You expect your heirs to fight over your estate

You expect to become mentally disabled

Also note that a living trust does not avoid estate taxes. It can, however, help reduce estate taxes if you owe them, but a tax-planned will can accomplish the same goal. While living trusts are expensive to set up and difficult to maintain, there may be a few instances where having one is appropriate.

No. A living will is a medical document and tells your loved ones how you want to handle end-of-life decisions. A living trust is a type of trust typically set up by a person for themselves during their own lifetime- hence the term “living” trust.

There are two primary reasons for making sure you set up trusts for your minor children. First, children under age 18 are not legally allowed to manage their own money. Therefore, if they inherit a larger sum of money or even a part of your real estate, they would be required to have a guardianship set up. Guardianships can cost quite a bit of money and are very time consuming.

Secondly, if your child stands to inherit a decent sum of money, you may decide that receiving it at the age of 18 is not best for your child. By putting your money into a trust for your children, you can still support them for things like healthcare, education and living expenses while protecting them from a windfall of money at the age of 18.

Probate is the process where the court determines if a will is valid. The judge will check to make sure all of the requirements of a properly executed will were met. You must also prove that the will was not revoked or cancelled. Once the will has been validated, the court will issue “Letters Testamentary”, which allow the executor to complete all of his or her duties. Many banks and financial institutions require letters testamentary to allow the executor to access the deceased persons’ money for distribution. Probate of a will is not required, but may make the executor’s job much easier.

Not entirely. In Texas, there are several types of “probate.” The simplest type is an independent administration. If there is a valid will and it is admitted to probate, then the court will likely approve independent administration of the deceased person’s estate.  This means that the executor has very wide latitude to conduct their duties without court supervision. In most instances, the executor only has to appear in court one time at the very beginning of the process.  The entire procedure is usually completed within a few months.

However, if there is no will and a feuding family, then the process can be difficult, time consuming and expensive.

As discussed above, probate is not required. However, some reasons you might want to consider probating a will are:

The estate owns real property (i.e. a home, real estate, land, etc.) or mineral interests. Probating the will allows the executor to clear up title to the property and make it possible to sell in the future.

The estate has more debts than assets. Probate can allow the creditors’ claims to be paid in an orderly manner, but also set an ending date for when creditors can make claims so that the estate cannot be bothered indefinitely by creditors. (Note: the best way forward for an estate with more debts than assets can vary widely and you should consider discussing the options with a probate attorney first.)

Someone might contest the will.

The deceased person had a living trust but did not get all of her or her assets into it before dying.

If you chose not to probate a will and 4 years have passed from when the deceased died, then you will have a much harder time trying to administer the estate. If you are at all unsure of what to do, please contact a probate attorney.

Most likely yes. Nearly every court requires an attorney if you want to serve as an Independent Executor. This is because many people (including creditors and beneficiaries) are affected by the executor’s actions. Also, an executor has a fiduciary duty to the beneficiaries of an estate, meaning they have a legal obligation to act in the beneficiaries’ best interest. For these reasons, most courts require the executor to work with an attorney.

A living will is a medical document which allows you to share with your loved ones how you want your end-of-life decisions handled. Living wills are only effective while you are still alive.  Once you die, your regular will takes over and determines what happens to your property and who should care for your children.  Many people use a living will to express their desire not to remain on life support for an extended period of time. However, a living will can also express the opposite, a desire to be left on life support and not removed.  No matter what your decision, it helps your family and medical team understand your wishes before anything impairs your ability to think clearly and objectively.

A financial power of attorney allows the person you give the power to (called the attorney-in-fact) to make decisions and take actions for you on your behalf.  This person has a legal obligation to act in your best interest but can take a variety of actions for you, including buying and selling property, moving money into and out of bank accounts, and opening credit cards in your name.  Because this person has a large amount of power, you should be very selective about whom you give power of attorney to.  However, a power of attorney allows someone you trust to take care of your life’s business if you are unable to do so.

A medical power of attorney only applies to health care decisions. This is different from a financial power of attorney (see FAQ above) which applies to all other business and financial decisions. A medical power of attorney allows the person you designate to make medical decisions for you if you are unable to. It is important to note that typically the person holding your medical power of attorney does not have the power to overrule your living will if you have one.