Wills

What Happens If I Die Without A Will In Texas? 

If you die in Texas without a Will, you lose control over who gets your property and who will be in charge of your estate. Further, the probate process will be more troublesome, expensive, and time-consuming for your loved ones. 

If you live in Austin, then your estate will likely be probated in Travis County when you die. Travis County is one of several counties in Texas that has a ‘Statutory Probate Court.’ This is a special court that handles only probate cases. If you live in Williamson County or Hays County, the county courts have jurisdiction over probate cases. E.g., if you die in Round Rock, the Williamson County Court has jurisdiction over the probate of your estate.

Regardless of where your estate is probated, having a proper Will in place streamlines the probate process and reduces the expense and burden of probate on your loved ones. 

Does My Will Control Who Gets My Property When I Die? 

Yes and no. Your Will controls the disposition of your ‘probate assets.’ Probate assets include your house, other real estate, personal property, cash, vehicles, and business interests. Your Will must be probated in order to pass these assets to your beneficiaries, unless you use a trust or other estate planning tool to avoid probate. 

In addition, there are also ‘non-probate assets,’ which are usually not subject to the probate process. These are the assets that have beneficiary designations, such as life insurance, IRAs, 401Ks, investment and brokerage accounts. This type of asset goes directly to the beneficiary named on the account. In addition, property held in a trust is not subject to probate. However, there are circumstances where these non-probate assets can become probate assets. For instance, if you don’t designate a beneficiary on an account, or, the beneficiary you designated predeceases you. 

It is important to work with an estate planning attorney to coordinate your non-probate assets with the rest of your estate plan. For example, if you intend to benefit minor children in your estate plan, the minors should not be named as direct beneficiaries on non-probate assets, as minors cannot technically inherit property in Texas. Other estate planning tools, such as trusts, can be utilized to ensure that these assets are available to your minor beneficiaries. 

Who Should I Choose To Be My Executor? 

When creating a Will, you need to choose an Executor. Your executor is the person in charge of handling the affairs of your estate after you die. Your executor will be the one to hire a probate attorney, appear in a Texas probate court, pay debts and final expenses, and ultimately distribute the assets to your beneficiaries. 

Most people select a trusted family member or friend to serve as executor. An adult child may serve as executor. A beneficiary of you will may also serve as executor. When selecting an executor, you should choose someone who is responsible, trustworthy, able and willing to serve, and capable of making decisions and remaining impartial. 

A convicted felon cannot serve as executor of an estate in Texas, nor anyone who has been convicted of a ‘crime of moral turpitude.’ No probate judge, whether in Travis County or elsewhere, will appoint anyone who is a convicted felon. 

In some situations, it may make more sense to use a corporate executor. Corporate executors, such as banks, are a good option when your beneficiaries do not get along with one another; or, when nobody else is suitable for the role of executor. However, most corporate executors will only agree to serve if the estate is worth at least a certain amount. This amount varies amount institutions, but in Texas, most corporate fiduciaries will only agree to serve in situations where the total value of the estate is at least one million dollars.

Do I Need A Testamentary Trust In My Will? 

You can create trusts within your Will. A trust inside of a Will is called a testamentary trust, and this type of trust takes effect once the Will has been admitted to probate. It is commonplace for Wills to contain testamentary trusts for minor beneficiaries, since minors technically cannot directly inherit property. Your trustee, the person you name to manage the trust, can look after your beneficiary’s inheritance until your beneficiary reaches the age of 18. You can also specify a later date for your beneficiaries to receive their inheritance (e.g., 25). A testamentary trust does not avoid probate like a living trust, however; the will must be admitted to probate before the testamentary trust takes effect. If your goals is to have a trust that avoids probate, a living revocable trust will be the better option. 

From our Austin office, we prepare Wills and estate plans throughout the area, including Hays County, Buda, Kyle, Dripping Springs, Driftwood, Northwest Hills, Round Rock, Pfluegerville, and Williamson County.