I have written about dying without a will before, but I’ve had two particular clients contact me with difficult stories that I wanted to share on this subject. In both cases, a simple, inexpensive will created by an estate planning attorney could have saved the families a lot of money and prevented so much unnecessary stress.
In the first case of dying without a will, a young woman called me saying she had lived with her father for years in his house while acting as his primary caretaker during his long and difficult fight with cancer. He evidently had talked about getting a will to make sure she got the house upon his death, but he never did. After he died she contacted me asking what she could do. She’s on disability herself and has very little money. To go through what is called an heirship proceeding would be very expensive and time consuming. And I can’t use a simple Affidavit of Heirship for her, because the estate has debts. Likewise, I can’t use a Small Estate Affidavit, because she was not the spouse or a minor child of her father’s at the time of his death.
In the second case of dying without a will, an older lady contacted me saying her husband of several years had recently died without a will. Her husband bought the house before they got married, so per Texas law that’s considered his separate property (Texas is a Community Property state). On top of that, her husband had two children from a prior relationship. Well, like in the first case, the husband had told his wife that he intended to give her the house upon his death. He even had written it down on paper somewhere, but an official will was never created and signed. Well, in Texas, if you are married and die without a will, then your children get all of your separate real property and your surviving spouse merely gets a 1/3 life estate (the surviving spouse gets to live in the house but does not actually own it). So in this case, even if this woman were to go through an expensive heirship proceeding, she wouldn’t get the house which is by far the biggest asset of her deceased husband’s estate.
Again, in both cases, dying without a will caused the people they loved and who deserved the most to go through completely unnecessary suffering. An inexpensive, easy to create, simple will would have solved all of these problems.
