What Happens If You Don't Have a Will?

Post by: Lesley Hempfling

Many people believe if they are married that they don't need a Will because their spouse will take all of their property at their death. This may or may not be true. For example, if you have children from another marriage or previous relationship, those children (your descendants) will own a portion of your separate property as well as your community property at your death. If you have made no alternative provisions and have done no planning, many times the surviving spouse ends up owning property with children that they may or may not have had a relationship with during their life. This can not only complicate the probate process, but it adds expense to that process when parties become adverse. There may also be complications with separate v/s community property and the distribution of those assets in an intestate death (dying without a valid Will).

Blended families are not the only instance where someone's plans for their property at death can be disrupted without a properly drafted Will. Co-habiting and Same-Sex couples are particularly susceptible to such situations. Currently, in the State of Texas, same-sex couples are not allowed to marry. Consequently, the community property rules that protect surviving spouses in many instances (e.g. a surviving spouse has a right to live in the homestead until their death regardless of who was given that property at the death of the first spouse and cannot be forced by the Executor to sell such property), are not available to same-sex and cohabiting couples. Many of these couples do not realize if they die without a valid Will that the "laws of intestacy" will apply to the distribution of their property. Many times this frustrates their intent. For instance, many couples own real property together and businesses. When the first dies, the surviving partner will in most instances own that property or business with the surviving parents or siblings of their partners.

If yours is not a "traditional" family, discussing your specific circumstances with an estate planning attorney and then preparing a valid Will and possibly prenuptial/post-nuptial agreements and/or cohabiting agreements are a must.