McKinney, Texas Wills Attorney

I’m often asked, “Do I really need a will?”  The simple answer is, “Probably, but it depends.”  Unfortunately, the instances when it might not be advantageous to have a will are few and it is difficult to determine before you die whether you will be in such a situation.

Some people think that if they don’t prepare a will, then when they die their heirs will not have to go through that terrible event called probate.  Unfortunately, whether you have to probate an estate has nothing to do with whether you have prepared a will.  If your estate has to be probated, not having a will can make the probate process much more cumbersome and expensive than is the case if you have a well drafted will.

A will is a document in which a person declares what he wants done with his property at the time of his death. A will has no effect until the person who wrote it, known as the testator, dies. The testator can also revoke a will at any time prior to his death.  If you die without a will, the state will distribute your property to your heirs according to the state's intestacy statutes. Those statutes might call for a distribution that is similar to what you want.  But they might also provide for distribution contrary to your wishes or leave out some provisions that you might have included in a well drafted will.

For example, in a traditional family situation with children of only the existing marriage, one might believe that all of a spouse’s property would pass to the surviving spouse.  And in Texas that is true as to the couple’s community property.  But the decedent’s separate property, in that instance, will be divided much differently.  For separate personal property, one-third will go to the surviving spouse and two-thirds will go to the children; for separate real property, one-third will go to the surviving spousefor her lifetime and the remainder will go to the children, subject to that life estate that the surviving spouse has.  Other family arrangements will result in different distributions.

Additionally, these state intestacy laws don’t provide for who will get certain specific items of your property. This can lead to many problems. Your heirs may not agree on who will get certain items of your personal property. For example, you may desire that your eldest son inherit the china that has been handed down through generations, but your daughter may want some or all of it.   If you die without a will stating your desires, your heirs may end up spending limited resources of your estate fighting in court over who should receive certain property.  So even if you don't have a lot of assets, you may be concerned about making sure that certain items of your property go to the people that you want it to. You can do this with a will.

Another misconception about having a will is the idea that having a will causes your heirs to have to go through probate, and that it will be difficult and expensive.  Whether you have a will or not, there are certain situations that require probate in order to accomplish the transfer of a decedent’s property.  If you die without a will, the court is still going to have to oversee the distribution of your assets to your heirs. There is absolutely no reason to think that this process is made easier or less expensive by your not having a will. In fact, it will probably be more expensive. For one thing, whoever administers your estate will probably have to post a surety bond if you don't have a will. If you do have a will, not only can you choose the person who will administer your estate, you can provide that he or she will not have to post a surety bond.  Having a will allows you to provide that your estate can be administered with minimal court oversight, also.  This action alone could save your estate quite a bit of expense and time.  The probate process in Texas can be fairly streamlined and inexpensive for an uncontested estate involving a well drafted will. 

Do you have minor children? If so, you really need a will.  The will allows you to designate who you wish to have guardianship of your minor children and of the property you pass to them.  You can also include provisions so that the property you pass is available to the children if needed, but not distributed outright to them – even after they reach 18 years of age – until they reach the age at which you want them to have complete access to the property.

If you are a married couple with an estate approaching or exceeding $11 million (including life insurance), special tax planning through the use of trusts included in your will may be advisable.  Additionally, regardless of the size of your estate, you will probably want to execute "advance directives", which includes a general power of attorney, a medical power of attorney, an advance directive to physicians and possibly other related documents to address various situations where you cannot care for yourself.

Even if your estate is small, there are good reasons to have a will.  You should see an attorney who practices in the area of estate planning, wills and trusts.  Our office can help you decide what provisions you should include in your will and whether you need more advanced estate planning techniques.  Mr. Davis can help you implement an estate plan that is best suited to your needs.

Please contact our office for an appointment.  We are located at the intersection of Plano, McKinney, Frisco and Allen, Texas, just 30 minutes from downtown Dallas, and provide legal services to individuals in the North Dallas, McKinney, Frisco, Plano, Richardson, Addison, Lewisville and Carrollton areas of Collin, Denton and Dallas Counties