Uncle Harry Was Single When He Died Without a Will

In my last post, we discussed what happens to a person’s estate when they die without a will.  That post focused on the decedent being a married person at the time of death.  This post will consider what happens to the estate of a single person.single-parent

The easiest situation to address is when the single person did not have any children.  In that case, the state looks to parents, siblings or other relatives on either side of the family to find a qualifying heir. So, if parents survive, they inherit.  The process continues until heirs living at the time of decedent’s death can be located.

If decedent died with children (or other descendants), they gain priority over the heirs listed above.  If someone dies and leaves behind no surviving heir, the estate would go to the State of Texas.

If all a decedent’s heirs are of the same level of relationship (for example, all are cousins or all are grandchildren), they will divide the estate in equal shares.  However, if the heirs have different levels of relationship (for example, if some of decedent’s children predecease, leaving children or grandchildren of their own), then the younger generations would be entitled to only the share the older generation would have received had they survived.

As you can tell by this description, the state has very specific laws defining who inherits in various circumstances.  Even the foregoing description is fairly generalized.  In some circumstances, the laws can be ­­­­­­­­complex and not what one might expect.

For example, stepchildren are treated quite differently from adopted children.  The decedent may have served as parent to a stepchild for many years and may have dearly loved the stepchild.  However, without a will a stepchild is unlikely to inherit from the decedent’s estate.

The foregoing is not to say that it is always difficult to deal with the estates of people who die without a will.  But generally, it is more complex than administering the estate of a person who has a will.  The level of difficulty depends in large part on how large the family is, how easily family members can be identified and located, and how amenable all family members are to accept the distribution provided under the laws of Texas or to agree to a different distribution.

Bottom line – you are better off having a will to ensure your objectives are fulfilled.  Regardless of how small you think your estate is, how simple your desired distribution, or how agreeable your heirs, you should speak with an estate planning attorney to get a professional review of your plans.

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What Happens to My Estate If I Die Without a Will?

If you die without a Will, the result is largely controlled by the state where you resided at the time of your death.  However, if you own real property, the state in which that real property is located will control its disposition.

I should also note that most personal property has no title document associated with it, so it is important that family members secure the decedent’s personal property as soon as they learn of the death.  Otherwise, valuable personal property may disappear before the rightful owner finds it.

It is also important to note that even though Uncle Harry told you and the entire family many times that his valuable coin collection was to be yours when he dies, if Uncle Harry was a resident of Texas and died without a valid Will, his property will be distributed to his heirs as determined by Texas law.  That law doesn’t take into account Uncle Harry’s wishes.  Depending on Uncle Harry’s situation, you may very well not receive that coin collection … or anything else from Uncle Harry’s estate.

So, without that Will, the State of Texas handles the distribution of Uncle Harry’s estate in a variety of ways.

old-coupleThe Deceased is Married

You would think that if you are married and die without a Will, that your spouse inherits your entire estate. That may not always be the case. The division of property at that point is dependent on whether it is community  or separate property.

Community property refers to most property owned by married people and acquired during marriage.  If you are survived by a spouse and children, your surviving spouse in most cases will receive the community property if all your children are also of your surviving spouse.  But if you have children from someone other than your surviving spouse, your children will receive your half of the community property while your spouse will only retain their own half.

Separate property is typically property acquired before marriage. It can also be property acquired during marriage by gift or inheritance. If your property is characterized as separate and you have a surviving spouse and children, your spouse could receive 1/3 of your separate property and a life estate. A life estate is an estate limited in duration by life. In other words, they would have the right to use your separate property until his or her own death. If you are survived by parents and siblings, they can receive half of your half of your separate property, while the other half could go to your spouse. However, if you have no children or other descendants, your surviving spouse is usually entitled to all your separate property.

In a future post I’ll look at the situation if Uncle Harry is single when he dies, and some special circumstances.

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Who Cares for My Minor Children When I Don’t Have a Will?

In Texas, the law states that as ????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????a parent of a minor child you have numerous rights and duties.  Among them is to care, control, and protect the child.  Most parents also desire to keep their children safe, teach them morals and keep them healthy.  But if you don’t have a will or trust appointing a guardian for your children, who will care for your children when you die?

To the surprise of most people, family members (except for another parent) cannot simply assume responsibility for minor children.  A state court must appoint someone to assume the parents’ duties in their absence.

Many times that court will decide in a manner that you might not have objected to if you had made the decision.  But that is not guaranteed.  And this process can be very stressful for your children and result in some unsettling situations where children are split up or they end up with someone whom you never would’ve chosen. The state may prioritize location, lifestyle or relationship differently than you would have.

There is no single rule for how a ruling might be made. There are so many possible outcomes for your children if you fail to properly plan ahead for them. For that reason alone, preparing a will with the advice of an estate planning attorney is especially important.

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Do Not Resuscitate

dnrI frequently am asked by clients whether they should execute a DNR form so paramedics won’t resuscitate them.  I usually suggest they discuss this matter with their primary care physician before going any further.

Recently, Virginia Hammerle, an attorney in north Texas, wrote the following post on her blog providing an insightful description of what the DNR is and isn’t.

The Out-Of-Hospital Do Not Resuscitate Order – A Document That You May Not Want To Sign Now

by Virginia Hammerle in Estate Planning and Probate, Legal Talk

Previously we looked at two “must-have” Texas documents: the Medical Power of Attorney and the Directive to Physicians. Rounding out the Medical Advance Directives triumvirate is the “Out-of-Hospital Do Not Resuscitate Order.” While the other two documents are serious, this document wins the prize for being the most intense. It is your instruction that you…

Previously we looked at two “must-have” Texas documents: the Medical Power of Attorney and the Directive to Physicians. Rounding out the Medical Advance Directives triumvirate is the “Out-of-Hospital Do Not Resuscitate Order.”

While the other two documents are serious, this document wins the prize for being the most intense. It is your instruction that you should not be resuscitated by CPR, advance airway management, artificial ventilation, defibrillation, transcutaneous cardiac pacing or any other life-sustaining treatment specified in the Texas statute.

If you are competent, then you can sign your own OOH DNR. You must sign in front of two witnesses or in front of a notary. Unlike the other two documents, however, the OOH DNR is not valid unless it has also been signed by your physician.

While you can sign the document at any time, you should carefully consider if you really want this one to be effective now. For most people, this is a document that should be signed only at the end stages of a terminal or irreversible condition.

The “out-of-hospital” coverage for the document is surprisingly broad. It is effective in locations where health care professionals are called for assistance. That includes long-term care facilities, in-patient hospice facilities, private homes, hospital or stand-alone outpatient or emergency departments, physician’s offices, or vehicles during transport.

The coverage does not include, obviously, in-patient hospital areas. There is a different document for that, creatively named “In-Hospital Do Not Resuscitate Order.” Since your out-of-hospital DNR is not effective in a hospital setting, you can request that an in-hospital DNR be placed in your medical records so the hospital staff does not perform CPR on you. Like your OOH DNR, the in-hospital DNR has to be counter-signed by your doctor.

Once you have an OOH DNR, then your next step is to make sure everyone knows about it. You should purchase a DNR Identification device which can be worn around your neck or as a bracelet. You should tell your caregivers and keep a copy of your OOH DNR near you, prominently displayed. Hospice companies will routinely request a copy for their records.

Be forewarned: having the OOH DNR is not a guarantee that it will actually be followed. While a health care professional is required to comply with a valid OOH DNR if the professional actually knows about it, the professional is also required to determine that the OOH DNR has been properly executed and verify your identity. In the real world, that means that, when in doubt, emergency personnel and other health care professionals will resuscitate you.

An OOH DNR is effective until it is revoked. How do you revoke it? You can destroy the form and remove your identification device, you can revoke it in writing, or you can verbally communicate to a health care professional that you want it revoked.

Now for the fine print. An OOH DNR will not be honored if you are pregnant. An OOH DNR can only be used in conjunction with the “natural process of dying.” If you have revoked an OOH DNR, you can re-execute it at any time. If you don’t have capacity, if you do not have a guardian, and an OOH DNR is appropriate, then it can be executed by (in this order) your spouse, your reasonably available adult children, your parents, or your nearest living relative.

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What If I Die Without a Will?

I’m often asked if people really need a Will.  My flippant response is often “it depends, but if you are not going to do one, take my card and give it to your family because they will most likely need a good attorney when you die.”  When you die without a Will, an already difficult time can become a complicated legal situation for your family.  The effect of dying without a Will depends on what state you reside in at your death, but the general impact is fairly consistent in most states.  Most likely you will have a more complicated probate process than if you had a Will and depending upon your family situation, people may manage and inherit your estate who you would not have selected if you had done a Will.

do-it-nowSo why don’t more people have Wills?  There are many reasons people give for not having a Will.  These are a few:

  • Too Young.  Even the youngest adults are likely to benefit from having a Will.  You can designate someone to manage your affairs upon your death and the person or persons who are to receive your estate.  Once you are married or have children the reasons for having a Will as a young person are even more compelling.
  • Lack of Property. Even if you have little to no property, it still must be dealt with after your passing. Without a Will, no one has the authority to make decisions, thus making the process more stressful for those you leave behind.
  • Indifference.  Like being too young, even middle age and elderly people often think they don’t need a Will until they are in a nursing home or on their death bed.  By then it may be too late.
  • Time and Effort.  Some people may know that they need to appoint someone to manage their affairs after their death, but when they try to think who that should be they become confused or discouraged about making the selection.  But meeting with an estate planning attorney in person can often suggest alternatives to resolve concerns. In the end, the time spent is a good investment.
  • Legal Fees: The cost of hiring an estate planning lawyer and ensuring you have a legally sound Will can often more than pay for itself in the conflict avoidance among your loved ones after your passing.

I urge everyone to at least sit down with an estate planning attorney to discuss your situation in general terms to see what benefits you might gain by having a Will.  Most attorneys will tell you if you are in a situation where a Will is not necessary.

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