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Now is the Time to Make Your Will

Dear Mr. Premack: My wife and I were married to each other for 35 years. We did not have any children, and were never married to anyone else. She inherited an interest in some land along with her two brothers. She died recently, before we got around to making Wills. Do I inherit her share of the land? – EJ

You and she had 35 years of marriage and no children to distract you from each other. She became an owner in this inherited land, and the two of you may have owned a house, cars, bank accounts and other assets. If she had made a Will, you would know your exact inheritance rights and would be able to exercise those rights in a fast and affordable legal process. Why do people fail to create Wills?

Failure to make a Will or other valid estate plan sinks you into a legal outcome that is undesirable and into a legal process that is more complex and expensive than it should be. Hiring a lawyer will save you money when it helps you avoid legal pitfalls!

Hiring a lawyer to help write a Will is a no-brainer. Don’t know a lawyer? Do some research! Ask a friend or an associate. Look at organizational websites, like Come on, you found a doctor, a veterinarian, a grocery store, a stockbroker, etc. You found this column written by a lawyer certified as an Elder Law Attorney. You have the skills and the need to pick a lawyer! There is no excuse for not having a Will or other valid estate plan!

Do you hear the message? Find a qualified lawyer NOW and take care of your legal planning NOW.

OK, enough of that rant. You are asking me if, when your wife failed to make a Will, you are still going to inherit her share of the separate property land. I am presuming that she died recently. The Texas laws of descent and distribution provide an answer by forcing you to disclose in public the facts of her family tree and the circumstances of her land ownership. Some questions the law makes you answer are: Was she married? Did she have children from this or a prior marriage? Are her parents alive? Does she have siblings? Is the land her community property or her separate property? How did she come to own it?

The factual answers to those questions allow us to apply the law to your circumstances. In fact, she was married, had no children, is survived only by her husband and two brothers, and this share of the land was her separate property. Thus, the law recites that you receive ownership of one-half of her interest in the land. The other half passes to her brothers, increasing their percentage of ownership beyond what they had before she died.

What must you do, procedurally, to claim your legal rights? It is very likely that you will need to file in probate court to become Administrator of her estate. Depending on the circumstances, as Administrator you may have to be supervised by the court and may have to be bonded. You will have to ask the court to hold a hearing to determine the identity of her heirs at law (even if you think you are the only heir, it is not official until the court so orders). Your interests will have to be represented by an attorney who you pay, and you will have to pay a second attorney to represent the “unknown heirs” (even when you know that there are no unknown heirs, their absence must be proven to the court).

Now you see why it would have been better for her to have a Will. If she had seen an attorney and paid a few hundred dollars for a Will, then 1) you could be Independent Executor, with no court supervision and no bond, 2) you could be the sole heir if she said so, and you would not have to prove to anyone why you are entitled to the land, and 3) you could pay one lawyer for a fast easy process instead of paying two lawyers for a slow complex process.

Remember, making a Will is a GOOD thing that helps your family. It is NOT bad luck, it is NOT asking for trouble. It is a loving, caring step that each of us should take to protect our assets and to protect our families. If YOU don’t have a Will yet, now is the time for you to get started!

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, May 6, 2011


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