How To Die Without A Will

I recently hosted a seminar in Dallas-Ft. Worth as part of our estate planning series on the comparative differences between those who die with an estate plan (we called it a Will for brevity’s sake, but there are other planning options) and those who die WITHOUT a plan. Statistically, almost 60 percent of Americans say they have no estate plan whatsoever. This number is almost 70 percent among parents of kids under 18. Staggering.

The room was packed and there were lots of questions. Actually, there was really just one question asked a bunch of different ways:

What happens to my property if I die without a Will?

The answer to that question depends on a whole bunch of things like, who your family is, what you own, where it’s located, what you owe and to whom. Most attorneys would tell you that if you don’t have a Will, “the state” gets to make all the decisions. That’s true in the sense that, if you haven’t laid out in a Will who gets what, there are default rules. If you review them (here’s a link for Texas residents), you might find that what the state says and what you say isn’t all that different.

However, it’s the getting there that makes a HUGE difference. In my experience, the “no Will” cases experience a whole host of extras:

Extra Compliance: I practice in Texas. Our probate process where a Will is involved is not super-difficult. Without a Will, however, both the survivors and the court must work harder – something few enjoy. There is extra paperwork to be filed. There are extra people to contact. There may be extra court hearings to attend. There are extra investigations that must be conducted. And of course, there’s an extra cost to all this. More on that below.

Extra Attorneys. In Texas, dying without a Will usually means at least two attorneys must get involved (if not more). The survivors hire one attorney to handle the probate, and the court appoints another attorney to identify who the proper family members (aka “heirs”) are. The court appointed attorney must conduct a formal investigation and report back to the court before any money or property changes hands.

Extra Cost. You could see this coming, right? The survivors incur fees for hiring the probate attorney (which is ultimately paid for out of the estate funds) AND paying the court-appointed attorney’s fees as well. There is a time cost factor as well, considering most “intestate” (without a Will) cases take longer to settle. These extras are the minimums assuming all the survivors get along and there are no family fights going on behind the scenes. If there’s fighting, all bets are off.

Most people understand the point here, but have trouble getting motivated to act. Remember the 60 percent statistic above? When asked, roughly half of those said the reason they hadn’t done any estate planning is that they simply “hadn’t gotten around to it.”

Prince never got around to it. Aretha Franklin never got around to it. My client’s niece “Susan” never got around to it. All three of those cases are total messes.

We get it. Estate planning is awkward to talk about. It’s emotional. Its confusing. But its an imperative. This is why we make it easy for our clients.

Bottom line: Dying without a Will is unnecessarily complex and costly compared to the relative ease and peace of mind that comes with getting it done.

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