Probate Without a Will – When a Person Dies without a Will in Texas
When a Person Dies Without a Will in Texas, you end up with the State of Texas ‘Default Estate Plan’ – where heirs can be determined by statutory inheritance rules – even if the state-selected heirs were never intended to inherit anything.
Should a loved one die without a Will “intestate,” you are not alone: don’t panic. Making a Will or Trust is one of those things many people procrastinate about because contemplating one’s death is not as comforting a process when compared to other choices like opening a pint of Blue Bell ice cream. Passing without a Will or trust in Texas is common. It’s not smart. Moreover, you will probably be letting the people you love down should anything happen to you, so it might be time to come to terms with brutal reality: people are born, and people die. If you are visiting this website because you know you are unprepared and putting your family at risk, decide now to make that call or send a quick text message to Richard Cahan. Ask Richard some questions. Ask Richard how affordable it is to get you all fixed up. BTW, Richard is known to have fresh pints of Blue Bell and plastic spoons in his office refrigerator, if that will put you at ease.
What Happens IF you Die without a Will or Trust?
- there is no Will, or
- there was supposed to be a Will, but it cannot be found, or
- the decedent’s Will is ruled by a Texas Probate judge to be invalid,
Then you end up –by law– with the: ‘Texas Default Estate Plan’
The rules of the ‘Texas Default Estate Plan’ results in the decedent’s heirs being determined by statutory inheritance rules found in the Texas Probate Code. This expedites the process whereby the decedent’s estate can then be ‘probated’ in a Texas Probate court so that the estate can be legally wrapped up, the estate’s bills paid, and the decedent’s property transferred to his or her rightful heirs (heirs determined by the statutory state laws).
“Texas Default Estate Plan” – Those four words are what Texas estate planning lawyers refer to as the “DEFAULT” for anyone who passes without a Will or a Trust. If you remain ‘silent’ about WHO is to receive WHAT assets, by default, you leave ALL inheritance and ALL distribution decisions to be decided by a State of Texas bureaucrat. We are using the word “bureaucrat” to make a point here. State employees are going to step-in to your personal life, family dynamics, and finances if you do nothing. We are not being disrespectful using the word ‘bureaucrat’ for a Probate judge, as these judges are very capable, and good at what they do. Moreover, these judges are often overwhelmed with an endless docket of cases to adjudicate. But the TRUTH is, without a Will your estate will be assigned a random Texas Probate judge who never knew you, does not know your surviving family members, and cannot possible guess the ‘wishes’ of the deceased person who dies without leaving behind legal written instructions. The State of Texas Probate judge is forced to use the statutory rules to choose WHO is entitled to the decedent’s assets, even if judge-selected person or persons were never intended to inherit anything.
Upshot – Texas has inheritance rules established for people who never got around to drafting any legally-valid estate planning documents. That means that the government Probate court gets involved far more intrusively than the court does if you have a valid Will. When probating an estate with a valid Will, the Probate court’s involvement is less intrusive. The Probate judge is acting more in an oversight mode of (1) validating the Will, (2) approving the Will’s named executor, (3) overseeing all creditors are paid, and (4) all remaining assets are distributed to the Will’s specified beneficiaries.
Avoid Any Probate Court’s Involvement – If you want to EXCLUDE any government meddling in your family’s lives and finances EVER, then you will want to consider a ‘Living Trust.’ Not to worry if that’s what you want to explore. A trust-based estate plan is affordable for anyone, even those who consider themselves of modest means.
As an experienced Austin Area Probate Lawyer, Richard Cahan, can walk you through the process.
Who Can Start the Probate Process?
We get constant calls from heirs and beneficiaries who have been waiting for months or years to ‘hear about the distribution of someone’s estate. Out of frustration of ‘nothing happening’ they call a probate attorney looking for answers.
The filing of a probate application is typically done by the executor named in the Will. Such is the expected outcome by most heirs and beneficiaries.
Unfortunately, sometimes the named executor is quite happy to do nothing. The reasons for not proceeding with the probate process are often self-serving. Fortunately, Texas law allows ANY spouse, heir, creditor, devisee (a person to whom real estate is left by the terms of a will), or any other persons having a property right in, or claim against, the decedent’s estate to file a petition to start probating the estate.