Dying Without a Will

By Randy Michel on July 25, 2019


            At a recent charitable fund-raiser, some people at my table were of the notion that the State will get your property, if you die without a Will. Is that really true? No, but that should not encourage you to die without a Will either.           

            For your loved ones left behind, your dying without a Will involves more time, more money, and more emotional energy in wrapping up your estate. Let me explain.

            In many states—and certainly in Texas—dying without a Will makes two proceedings necessary. One proceeding will determine who will be appointed by the judge to administer your estate. The second proceeding will determine who your heirs are. (Yes, the proceeding is mandatory.)

            In addition, the person appointed to administer the estate will have to post a bond approximately in the amount of the assets other than real estate.

            Also, the administrator must get the judge’s approval to: (i) pay any debts, mortgages, taxes, etc.; (ii) sell real estate; (iii) transfer title to vehicles; (iv) sell personal property; (v) give away property, clothing, or furniture to Goodwill or other charity; and (vi) transfer money from one account to another. Many other tasks will require the judge’s approval as well. The judge’s approval often involves a request, followed by an Order approving the request. This is followed by a report, followed by an Order approving the report.

            To determine the deceased person’s heirs requires the appointment of a local attorney. The attorney must speak with two disinterested witnesses who knew the deceased, knew how many times the deceased was married, knows the children of the deceased, is familiar with the family history, and knows of, or can refute, whether there are illegitimate children. To find all of the heirs of the deceased sometimes requires hiring a forensic genealogist. The forensic genealogist does not come cheaply.

            Finally, the State does not capture the assets of the person who died without a Will. Instead, the judge will follow your State’s law on intestacy (dying without a Will) and distribute the deceased’s assets according to the intestacy laws. The distribution of the deceased’s assets according to the intestacy laws may be very different from the way Mother, Aunt Dorothy, or sister Marie would have distributed her assets if she had left behind a Will.

            The amount of the attorney’s fees from the two proceedings are often 20 times the cost of a Will. In several of my cases, the amount has been 100 times the cost of a Will.

            Still thinking it’s okay to die without a Will? Of course not. The State will not capture your property if you die without a Will. But probate attorneys will make a fortune off of your estate if you do. So consult a local probate attorney today. 

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