“Everyone needs a will.” It’s a statement most have heard numerous times from attorneys, insurance agents, and financial/estate planners. Despite this common advice, many people do not draft a will or do any estate planning. But does it even matter? What happens when you die without a will? Who gets your “stuff” and, most importantly, who decides how to divide valuables, such as land, money, retirement accounts, etc.?
The short answer to the first question is a resounding yes, it absolutely does matter. The latter questions are more difficult. These questions require attorneys, legal fees, and a lengthy journey through a legal maze.
This two-part series will describe the consequences of dying “intestate,” and the legal burdens it places on surviving family. Specifically, this series will explain the basics of the burdensome legal process family members must follow to appropriately divide the decedent’s estate among heirs. Part I of this series provides a brief overview of the legal process required following a death without a will and explains the heirship proceeding. Part II covers appointing an administrator and administering an estate.
Normally, when a person dies—this person is known as the “decedent”—a family member or friend “probates” the decedent’s will. Unless someone contests the will, this is a fairly simple process: a person files the decedent’s will with the Court, notice is issued, and the Court appoints an executor (usually named in the will) to carry out the will. Essentially, there are a few formalities and then the executor just does whatever the will says.
When a person dies without a will, Texas law refers to that as dying “intestate.” When this occurs, an interested party (usually an “heir,” such as a child or spouse of the decent, or even a creditor) must go through a much more rigid process that is complicated, time consuming, and expensive.
This process requires two steps: (1) determining the decedent’s heirs and (2) administering the estate’s assets to those heirs.
First, a Court must “determine heirship.” This is just a fancy way of saying that that the Court must identify everyone who can inherit from the decedent under Texas law. Usually, this is the decedent’s children, but identifying the heirs can be cumbersome if the decedent had no children, the children died before the decedent, or if the Decedent had children no-one knew about (surprise!).
To determine heirship, an interested party must file an application with a Court to “determine heirship.”
This application is detailed, and requires facts about the Decedent’s life, including identifying current and former spouses, the children of each spouse, and children born outside of the marriage. Keep in mind that this is a public Court filing, so one can see how quite a bit of “dirty laundry” could be made public in this document.
Additionally, the Court will appoint an “ad litem” to conduct an investigation into the decedent’s life to determine whether there are any “unknown heirs.” Typically, this means the court will appoint an attorney, who will interview friends, relatives, and others to see if he/she can identify any unknown children of the decedent. Again, one easily can see how this investigation could unearth embarrassing life details.
Once the ad litem’s work is completed, the Court will conduct a hearing to determine heirship. During the hearing, the Court it will hear evidence about the Decedent’s life in order to establish the proper heirs. This hearing usually requires the ad litem providing the Court with a full report about his investigation (he will testify orally about his report and provide a written report) and witnesses giving testimony in open court about the decedent and his potential heirs. If the Court is satisfied, the Court issues an Order judicially establishing the appropriate heirs.
Importantly, the decedent’s family must pay for this entire process. The family must pay a probate attorney to guide them through the heirship proceeding, court fees for the application and the various forms of notice and citations, and the ad litem’s attorney fees—so the decedent’s family must pay for two attorneys. This entire heirship proceeding process could have been avoided by a simple will.
Now that the Court has determined heirship, the easy part is over and less than half the work is done. Although we now know the heirs, the estate still needs to be divided among the appropriate heirs. Bank accounts must be closed, property must be transferred, heirlooms must be passed on, etc.
But who makes these decisions? Who gets to decide how to divide estate assets? What procedures must be followed? Most importantly, how much does it cost?
These are all questions will be covered in the second part of this series: “Death without an Will Part II: Administering the Estate.”