Attorney at Law
Wills and Probate
Frequently Asked Questions
The following common questions and answers will hopefully provide some information to assist you in determining how best to protect your loved ones and your property.
1) I have heard that the state will get my property if I die without a will. Is that true?
ANSWER: No! There is no huge warehouse somewhere in which the state places all of the property owned by individuals who die without leaving wills. What does happen if you die without a will is that the state, through the laws set forth in our Texas Estates Code, has determined how to identify your heirs in the event you die without a will. Instead of an individual being able to name the person or persons he or she wishes to have inherit his or her property, the heirs of an individual who dies without a will are already determined by state law, and are set down in print in our Texas Estates Code.
2) Is it true that I will automatically inherit my spouse’s interest in our home if my spouse dies before me and has a will leaving it to me?
ANSWER: Absolutely not! This is one of the most common misunderstandings I hear from clients every day. PLEASE REMEMBER that a will has no legal significance until, or unless, it is recognized by a Court as a valid will. Being named in a will does not give you the authority to inherit anything. You must have some kind of probate procedure take place before your spouse’s interest in the house is legally transferred to you under a will.
3) Is it possible for me to pass down my property without my heirs having to go through a complicated probate procedure in Court?
ANSWER: Yes. We have many different types of shortened "probate" procedures which individuals may qualify for, depending upon the nature and extent of their property at the time of their deaths and whether or not they had a will. You should consult with an attorney to see how or if your estate may qualify for such a procedure.
4) Can I omit one of my children if I do decide to make out a will?
ANSWER: Yes. You can name anyone you wish to inherit your estate; Texas has no requirement that any, or all, of your children be named as your heirs.
5) What happens if I change my mind after I have made out my will?
ANSWER: You can have a "Codicil", or change document, prepared which would explain the change you wish to make to your original will. This “Codicil” would then need to be submitted to a Court to be recognized in a probate procedure, along with your original will. PLEASE NOTE that you should never make any kinds of changes by writing directly on your original will, as such action can result in your entire will being invalidated.
6) Do I have to tell anyone ahead of time who I have named in my will to inherit my property?
ANSWER: No. The terms of your will can be held secret until your death.
7) I have heard that, if I put my spouse’s name on my bank account, as a "joint survivor" with me, then my spouse will be able to keep using that bank account after my death; is that true?
ANSWER: Yes. "Joint Survivorship" accounts are one way in which persons can pass down property to other persons without having to leave the property to that person in a will. The money passes down to the joint survivor of the account because of the contract relationship formed among the account holders and the Bank. There is no probate procedure which is necessary for the surviving spouse to continue to have access to the funds remaining in such a “joint survivorship” account after the death of the first spouse.
8) Is it true that a "living trust" will help my heirs avoid having to go to Court for a probate when I die?
ANSWER: Maybe yes, maybe no. It depends upon many factors, including the type of trust, type of property you own at the time of your death, and what property has or has not been transferred into that trust during your lifetime. I believe that some individuals are made to believe that they must have a living trust to safeguard their property, regardless of its value, their ages, or their ability to manage their own affairs. While some business owners wishing to provide lifetime income for a spouse may benefit from such a trust, it has not been my experience that it is a recommended tool for most middle income clients wishing to preserve their property for their heirs. You should therefore discuss with your attorney what benefits, if any, would be gained by having such a living trust.
9) How much does it cost to have a will prepared?
ANSWER: As with all legal services, the cost for a will to be prepared will depend upon the nature of your property, what you wish to accomplish in your will, and the attorney whom you hire to assist you. What you should remember is that, without having a will prepared, you will not be assured that the persons you wish to inherit your property will be the same persons whom the Texas Probate Code will determine to be your heirs. In the Law Office of Kathleen E. Matheu, I will provide you with a fee quote for the preparation of your will after I have met with you, learned about your property, and discussed your intentions for your estate and your heirs.
10) Can I prepare my own will in my own handwriting?
ANSWER: Yes. As long as you make it clear in the document you are writing that it is your will, and you make clear what you wish to leave to which people, and you sign that document, it would be considered a “holographic” will under Texas law. PLEASE NOTE that there are other factors which could prevent your handwritten will from being recognized by a Texas Court; proof of your handwriting and mental health must be presented at the time such a handwritten will is offered for probate in Court.
DISCLAIMER: The information provided herein is not intended to substitute for an attorney’s advice. No attorney/client relationship is formed by this communication. You are strongly urged to obtain legal advice directly from an attorney.
Copyright Kathleen E. Matheu, Attorney at Law. All rights reserved.