“Why do I need a Will?”
“I am just going to leave everything to my spouse. She will get it anyway.”
I hear that all the time. But my advice to everyone is: you still need a Will.
First of all, assuming that your spouse will “get everything anyway” is not always true. If you are in your second marriage and there are children from the first marriage, your kids will also inherit. That means that your spouse may get his or her half of the Texas community property, but your kids get your half. If you have separate property, your kids get 2/3 of that. And yes, that means what you think it does: all of your kids from your current and former marriages will own property along with your spouse. (That does not mean the kids can kick your spouse out of the house, but that is a topic for a different post). Regardless, depending on the relationships that is probably not outcome you desire. Even if everyone has a great relationship, you may not want your spouse to have to own property with your kids. It can be a mess to have your two kids from your former marriage, two kids from your current marriage, and your spouse on a deed.
It saves money!
Second, even if there aren’t multiple marriages and your spouse actually will inherit everything, having a Will saves a lot of money for your spouse after you die. If there is a Will, it’s a pretty simple and fairly inexpensive process to file the Will for probate. Your spouse will probably only file the Will, have a hearing, qualify as executor, and fulfill a few statutory requirements.
If you don’t have a Will, the court will require notice to your “unknown heirs” by publication in a newspaper, will appoint an attorney to represent those unknown heirs (that your Estate will pay for), and your spouse will have to bring two “disinterested witnesses” to the hearing to testify about your family history (which will now be a matter of public record). Then he or she will still have to fulfill the same statutory requirements. But the extra requirements will add about $1,000 or more to the probate in costs alone (which does not take into account the additional time that your spouse’s attorney will charge in preparing the more detailed application and in handling these additional requirements).
The total cost will double that of what it would take for your loved ones to probate your Will – if not more.
Probate is usually not a long process
As to the timing, the last application for probate of a will that I filed took exactly one month from the date that I filed the application to the date that we had the hearing. The last application for determination of heirship that I filed – in the same court as the application for probate – took three months from filing to the hearing.
There certainly are ways that you can avoid the probate court entirely, but you still need to seek advice from your attorney about your options. Otherwise, someone – whether it’s your spouse, your kids, your grandkids or someone else – will have to go through the lengthy and expensive processes outlined above when they need to transfer real and personal property out of your name and into their own.
Contact me to discuss you estate plan or probate problems.
See our Probate and Estates section to answer more questions!