Death Without a Will or a Trust
Note: This article is written based upon current Texas law, other States have similar provisions, but the details may vary slightly from State to State. Check with a local attorney specializing in Wills, Trusts, and Estates for your specific State laws.
In our previous Blog Post, we discussed Sam, a single person who recently died in Texas without a Will or Trust. In this post we discuss Susie. Like Sam, Susie was not married when she died. But there are several key differences.
- Susie is a widow.
- Susie died leaving three adult children: Alan, Benji, and Colleen.
- Sadly, Susie’s fourth child, Donald, predeceased Susie.
- When Donald died he left a surviving spouse, Trixie and two minor children of his own: Dave and Daryl.
No Will, No Trust, Many Challenges
If Susie dies without a Will or Trust, it is important to understand the administration of her estate will require two attorneys—one hired by and paid for by her family and a second appointed by the court (known as an ad litem) and paid for by the estate. This increases the time and cost of administration, because whether it is the estate or family paying for the attorney; it all comes out of the proceeds from the estate.
The Estate Is Split into Four Equal Shares
Further, because Susie was not married at her death, under Texas’ laws of intestacy, her property will pass to her children per stirpes, (latin for “by the roots”). This means the property will be divided into four equal shares.
Alan, Benji, and Colleen will each receive one of these 1/4 shares. The 1/4 share that would have passed to Donald will instead pass to his children. So, Dave and Daryl will each receive half of Donald’s 1/4 share, which is 1/8 of Susie’s estate.
Trixie Is a Legal Stranger
Trixie, Susie’s daughter-in-law and Donald’s surviving spouse, receives nothing from Susie. Effectively, she is a legal stranger.
Division of the Estate Is Only One Challenge
Unfortunately, Texas law can cause problems in terms of:
- Who manages Dave and Daryl’s share.
- The age Dave and Daryl receive the property.
Trixie, as the boys’ surviving parent, will likely be named as guardian of the money they receive from Susie. This may cause substantial conflicts within the family. Further, even if Trixie is a great caretaker for the boys’ money, the boys will gain full control of their share when they turn 18.
Inconsistencies in the Law
In our experience this is rarely desirable. There is a great irony in the law that a child is too young to purchase alcohol at age 18 but is able to receive an inheritance, in any amount, at that same age. There can be few things more dangerous to a young person that receiving a large lump sum of money at a tender age.
In the end, by dying without a will, Susie will have cost her family money, time and grief. All of which could be avoided with a simple estate plan.
In our next entry we will discuss married people dying without a Will or Trust in Texas.