I recently heard a story from a colleague regarding a probate matter in Houston. A man’s wife had recently died without a will in Texas (known as dying “intestate”), which meant that there was no document to handle the distribution of his property or the administration of his estate. As a added wrinkle, his wife had a child from a prior marriage, meaning that this was a blended family situation. Under the Texas Estates Code, this meant that any community property the couple acquired during their marriage would go 1/2 to the husband (he would retain his 1/2 community property interest) and 1/2 to the wife’s child from a previous marriage. Any separate property (generally, property acquired before the marriage) would go 1/3 to the husband and 2/3 to the wife’s child. The child was also a minor, meaning that special action would need to be taken to protect the child’s interest, such as the creation of a trust in which to place the child’s property. Unfortunately, since the wife died without a will or other governing estate planning document in place, this means the court may have to create a trust and appoint someone to manage the trust assets for the minor child.
After speaking with the potential client, I learned that the wife’s wishes were that her husband would receive all of her assets and then pass them on to her son when he died. Unfortunately, under the laws governing what happens when you die without a will in Texas, this is not the result. This could have been easily handled in a last will and testament, in which the wife could have left her property in a trust for the husband’s benefit, with any remaining property passing to her child upon the husband’s death. This is a very common estate planning scenario in which the wife would have been able to provide assets to support her husband during his lifetime, while ensuring that any of her assets remaining at his death would pass to her child rather than to someone designated by the husband, such as the husband’s later spouse or his children.
As an estate planning and probate lawyer, hearing stories like this trouble me because the desired result could have been easily obtained. Instead, not only were the deceased spouse’s intentions not followed under the default rules in the Texas Estates Code, but the estate will likely be much more expensive to administer due to the level of court oversight that may be involved since the wife died without a will. It is almost always better to have a valid Texas will in place when you die, but it is especially important to put an estate plan in place if you are part of a blended family. If you don’t, your remaining family members will be left to sort things out, which will be more expensive and time consuming than if you had a good estate plan in place when you die.