Here’s a call I get more often than you’d think. Someone’s father died last month. He was 71, healthy until he wasn’t, and he “always meant to get around to” a will. In fact, he did get around to it – there’s a draft sitting in his desk drawer, typed up, never signed, never witnessed. Legally, that’s a piece of paper. Now the second wife and the kids from the first marriage aren’t speaking, nobody can get into the bank account, and the house is in limbo. How long will this take, and what will it cost?
Longer and more than it needed to.
Nobody enjoys talking about death. But a couple of hours now can spare your family a year of court filings later. Here are eight reasons I’d put an estate plan near the top of the list, whatever your age or net worth.
Everybody has an estate plan. The question is whether you wrote it or the Legislature did.
Die without a will (dying “intestate,” in lawyer-speak) and state law dictates who inherits and in what shares. The defaults get strange fast for blended families – in some situations a surviving spouse ends up co-owning the house with stepchildren. I’ve covered how inheritance works with no will in Texas; the short version is that the statute doesn’t know your family.
And this isn’t a rich-person problem. Single, no kids, modest savings? You still have a default plan, and it probably isn’t the one you’d pick.
Texas has one of the more sensible probate systems in the country, thanks, inter alia, to “independent administration,” where the executor works with very little court supervision. The catch: without a will, getting there generally requires every heir to agree – on doing it, and on who’s in charge. One holdout, or one cousin nobody can find, and the estate can land in a “dependent” administration, where the court signs off on nearly everything and the administrator files annual accountings.
A will naming an independent executor skips all that. Months saved, real money saved, in the probate process.
If both parents die without a will, a judge picks the guardian after a few hours of testimony from relatives who each think it should be them. The judge’s choice may not be yours, and the fight can split a family for good.
Naming a guardian in your will doesn’t bind the court completely (it still has to find the appointment is in the child’s best interest), but in practice it carries a great deal of weight. It’s also the easiest thing in the whole plan.
An executor pays the debts, deals with the IRS, sells or distributes property, and makes judgment calls about who gets what – sell the house and split the cash, or hand it over in kind? Who gets grandma’s ring when three people want it?
With a will, you pick that person (and a backup (and a backup to that backup)). Without one, the court picks from whoever applies, following a statutory pecking order that may not match your opinion of your relatives.
Estate planning isn’t only about death. A durable power of attorney and a medical power of attorney let someone you’ve chosen act for you if you’re incapacitated.
Without them, even your spouse may be unable to sell a car in your name or deal with your retirement account. The fallback is a court-supervised guardianship: expensive, slow, public, and ongoing – the guardian generally keeps reporting to the court for as long as it lasts. A power of attorney isn’t an ironclad guarantee against guardianship (a bank can balk at an old document, and family members can still file), but it’s the single best tool for avoiding one, and it’s a couple of signed pages.
An advance directive (a “living will”) says what care you do and don’t want if you’re terminally ill or permanently unconscious. Without one, your family guesses, and the hospital default tends toward aggressive treatment.
It also takes an agonizing decision off your spouse’s or children’s shoulders. They aren’t choosing; they’re carrying out what you already chose.
Say your beneficiaries are minors. Or 19 (I know what I would’ve done with a house-sale worth of cash at 19, and it wasn’t index funds). Or 45 with a gambling problem. A will can send their share into a trust (a “testamentary trust,” since the will creates it) run by a trustee you name, paying for education, health, and living expenses until an age or milestone you set.
The same tool solves the remarriage problem. Leave everything to your spouse outright and your kids may see very little of it if your spouse remarries. Leaving the spouse’s share in a trust that pays income for life, with the remainder to your children, takes care of both.
Most estate litigation I’ve seen didn’t start over money. It started over ambiguity: a vague promise, an unsigned note, a sibling who “knew what Dad wanted.” A clear, properly executed will ends the guesswork. Family members can still be unhappy, but they can’t credibly claim you didn’t mean it.
That’s usually what people are really buying when they hire an estate planning lawyer. It costs less than you’d think, too – here’s what a will costs in Texas.
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