If you die without a Will, what happens?
One of my colleagues says, “Texas writes one for you.” What he means by that is that the Texas Estates Code determines how your property will be divided if you do not indicate your wishes in a formal Will.
For the vast majority of people, doing a Will is inexpensive and simple. But if you die without one, what would have been simple, may be much more complicated and expensive than if you had just invested the small amount of time and money it would have taken to have a reputable attorney prepare one for you.
If you die without a Will, it may be necessary for the Court to have an Heirship Determination Proceeding – the Court will determine who your heirs are (who would inherit your estate). To do that, not only is there a lawyer’s fee and county clerk’s filing fee to file the initial paperwork to open up the case with the Court, but there will also be additional costs for what is called an Attorney Ad Litem. The court-appointed Attorney Ad Litem will research if there were any unknown heirs of the person who died without a Will.
All this may seem totally unnecessary if the deceased person had one or two children, who are all well-known, but it is a requirement of the Texas Estates Code to make sure that no one is cut out if they are a legal heir. If the decedent had prepared a Will, in most cases, none of this extra expense for an Heirship Proceeding would be necessary.
So, why hire an attorney to prepare a Will for you?
Why not just do it from one of the forms now available online? If you need to have a tooth extracted, you COULD do it yourself, right? But what if there were the least little complication – it could turn into a nightmare which would end up being much more painful and expensive than if you have just hired someone who was qualified to do it for you in the first place. So, that is why most of us make an appointment with our local dentist or oral surgeon when we need a tooth extracted. It is unfortunate that life is not so simple that everyone cannot do it themselves, but it isn’t.
Nowadays, lawyers who handle probate matters are often called upon to probate a DIY Will.
Sometimes a DIY Will goes through the probate process smoothly, but often a DIY Will was not done correctly because the DIY company Wills were not created by Texas lawyers, and if the client asked advice from a lawyer with the DIY company, that lawyer might not fully understand either Texas law or the specific issues with this particular client’s estate.
Those “simple, self-prepared” Wills sadly often cost more to probate than the entire cost of drafting a Will AND the probate process if the client had retained a lawyer to do the Will for them in the first place. I recently handled a DIY Will through probate, and it cost several thousand dollars; whereas if the client had come to me to do his Will in the first place, the drafting of the Will and the entire probate process would have been about 1/2 of the cost of cleaning up the problems created by what he thought was a simpler and less expensive way to handle his estate.
In 2016, this type situation became highly publicized with the death of the artist Prince.
At that time, I explored the tragedy of not only his untimely death but the further ravages to his family unnecessarily caused by Prince not having a Will. Times may change with advances in technology and online opportunities to save money, but having the advice and assistance of an attorney when it comes to estate planning is still the best course to take.
If you don’t have a WILL, please talk to a lawyer about your estate and your estate planning needs. If you have a DIY WILL, please contact an attorney and at least have it reviewed. If you consult a reputable lawyer, and the DIY WILL meets your needs, they will be happy to tell you that, and you (and your family can rest easier). This will save you and your family time, money and stress at the time of your death.