Texas Estates Code : Death Without a Will
On Friday, March 13, 2020, President Trump announced the United States is officially in a “National Emergency State” for the purpose of trying to contain the Coronavirus, now considered a Worldwide Pandemic. The American way of life has been put on hold with schools, churches, and major events being cancelled until further notice. Many major companies have sent employees home to work online and smaller companies are laying off workers for lack of business. Grocery and drug retailer stores are being emptied by binge shopping from consumers who are afraid that supplies will dry up. How is this affecting you and your loved ones?
Now your priorities are your family and loved ones. It is difficult to contemplate one’s mortality as we face this Pandemic Crisis. Life can be fleeting, and one must prepare for not only your interest but for your family’s interest as well. You need to check to make sure that you have a will that will ensure your assets are inherited by the people of your choosing rather than the State of Texas ideas of what is proper.
To die without a will is to die “Intestate”. Absent a will, an individual must have his or her estate distributed per the laws of Intestate Succession. Intestacy is the process which the Texas Probate Code will determine which assets go to whom.
(ESTATES CODE,TITLE 2.ESTATES OF DECEDENTS; DURABLE POWERS OF ATTORNEY/SUBTITLE C.PASSAGE OF TITLE AND DISTRIBUTION OF DECEDENTS’ PROPERTY IN GENERAL/CHAPTER 121.SURVIVAL REQUIREMENTS/SUBCHAPTER A.GENERAL PROVISIONS)
This link above will direct you to the complete Estate Code Statue.
Here is a brief explanation of the statue:
When your loved one dies without a will, the Texas probate process is often expensive and frustrating. Absent a will, an individual must have his or her estate distributed per the laws of Intestate Succession. Intestacy is the process by which the Texas probate code will determine which assets go to whom.
If your mother or father dies without a will, here is the normal estate disbursement under the following conditions:
- Mother and father are still married.
- All siblings are born from mother and father, not out of wedlock or children of another marriage.
This is a common fact pattern for intestacy probate. If an individual die but their spouse is still alive then the assets will be distributed in the following manner:
- Community Property: The spouse will receive 100% of the community property.
- Separate Personal Property: The spouse is entitled to 1/3rd of descents separate personal property. The descendants are entitled to the other 2/3rds of separate personal property.
- Separate Real Property/Land: The spouse is entitled to a life estate in 1/3rd of the separate real property. The descendants are entitled to the remainder interest in that 1/3rd, plus a present possessory interest in the remaining 2/3rd of the separate real property.
If your wife or husband dies with no children, then the estate will be distributed in the following manner:
- Community Property: The spouse will receive 100% of the community property.
- Separate Personal Property: The spouse will receive 100% of the Separate Personal Property
- Separate Real Property: The spouse will receive ½ of the separate real property if the intestate is survived by a parent, sibling, or sibling’s descendant. The remaining ½ of the separate real property passes to the parent, sibling, or sibling’s descendant as if the intestate had no surviving spouse. If the intestate is not survived by a parent, sibling, or sibling’s descendant, the surviving spouse is entitled to all the.
This is a very general overview of some of the laws for an individual who does not create a will before he/she dies. The Intestate Statutes in Texas attempt to make an amicable inheritance of an individual’s property that will prove to be fair and just for the majority of the State’s citizens. These Intestate Statutes are automatic and non-negotiable. Dying without a will is a very traumatic legal situation for your family. There are many complex family situations to deal with families of multiple partners and children, same sex marriages, non- married partners with multiple children, single persons, etc. If you wish to leave your assets and property to specific family members or non-related people, then you must have a will. A will gives you, not the state, the power to dictate how your property will pass when you die. Take some initiative and meet with a probate attorney so you can confirm and assume your specific desires are met upon death.
Being Proactive saves much family heartache!
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Dallas Probate Attorneys
Texas Probate & Wills
Most estates must go through probate before estate property may be distributed, unless estate planning was done through a trust or a property was titled in beneficiaries’ names before the estate owner died.
Probate is a court-administered procedure that makes decisions regarding estates, which include:
-Determination of a valid will
-Identification of the decedent’s assets and property
-Opportunity for creditors of the estate to file claims
-Payment of creditors
-Payment of taxes
-Payment of estate administration fees -Distribution of the remaining assets to beneficiaries according to the will
-If no will, division and distribution of assets according to state laws
The property of an estate includes the total of all property and assets, including real estate, stocks, bonds, bank accounts, annuities and insurance policies, along with physical possessions such as furniture and cars.
Do you have questions about Texas Wills or Texas Probate? Contact our office for a consultation.
Nacol Law Firm P.C. – Dallas Probate Attorneys
(972) 690-3333
Legal Protection for a Texas Business
Successful business operations are based on careful planning, prudent governance and trusted legal guidance. Whether you are selecting an appropriate entity for your start-up company; structuring contracts, anti-competition construction, employment, supplier or licensing agreements; or acquiring, merging or dissolving a business, the expertise of the attorney you choose can make a significant difference in your business relationships.
At The Nacol Law Firm PC, in Dallas, Texas, we offer legal services related to a range of business transactions for entrepreneurs and commercial enterprises of all sizes in the Dallas–Fort Worth Metroplex and surrounding counties.
The business transactions our law firm handles include:
- Entity selection
- Business structure counseling
- Contract negotiations and drafting
- Partnership/shareholder/licensing/supplier agreements/ non-disclosure and anti-compete agreements
- Warranty development
- Mergers and acquisitions
- Trademark and trade name applications and registrations
- Business governance
- Business succession planning
- Corporate, LLP, and LLC organization
When you turn to our Dallas law firm for legal help with crucial business transactions, a wealth of experience gives your attorney an edge in preparing sound transaction documents crafted to protect your best interests and avert future conflicts and liability.
For more information on business transactions, from Dallas Business Attorney Mark Nacol, contact us today at (972) 690-3333.
Forming a Texas Business Corporation
Starting a Texas business corporation is not as complicated as one might imagine. Corporations are widely used as a business structure for small thriving entrepreneurs for many reasons. Corporations allow limited liability, a pooling of resources from many parties willing to invest, centralized management, and free transferability of ownership at any time. All these reasons make the corporation business model agreeable and a logical option for many entrepreneurs.
The forming of a corporation with legal assistance may be a smooth and efficient transition. There are a few requirements needed to form a corporation in Texas.
First, an individual must fill out specific requirements to complete their Articles of Incorporation’s, which are:
- Corporate Name
- Authorized shares
- Registered Agent
- Contact information (business address and number)
- Other miscellaneous terms and offers
After the Articles of Incorporation are completed, the individual must submit all paperwork to the Secretary of State. The Secretary of State will certify and return a copy to you, which will then be the Certificate of Formation. Once the Certificate of Formation has been received, an entrepreneur has an authorized corporation of record.
The Articles of Incorporation are basic documents to form the corporation and an individual should employ basic and specific terms required and desired in the Articles of Incorporation for more flexibility. The Articles of Incorporation basically places the public notice of its existence and authority.
The Bylaws of a corporation are the basic operating document. There are no formal filling requirements for the Bylaws. The Bylaws should be scrutinized by an experienced attorney as they govern the specific ways by which the corporation will be run. If there are multiple safe-guard provisions or limitations on power at an individual would like is corporation to be bound by then all of these should be placed into the Bylaws. The Bylaws of a corporation are easier to change than the Articles of Incorporation and that is why the Articles of Incorporation should be as flexible and broad in most cases as possible. The Articles of Incorporation are the governing law and will override the Bylaws. The Bylaws are comparable to a partnership agreement and both serve the same purpose.
In what venue should an individual create his corporation? The answer depends on what an individual wishes to do. Many young entrepreneurs wish to form corporations in the state to which their business is located. If an entrepreneur forms a corporation in another state or jurisdiction, they will be subject to those laws of that state and as well as the laws of the state of the principal office. For a start-up business, it might not be worth subjecting the business to two different laws if they are sued. Generally, absent state income tax issues, the best policy for a start-up corporation is to form a corporation in the same state that their business will be owned and operated.
Forming a Corporation is an important step in becoming a thriving business and it should be done with an experienced lawyer. A lawyer can ensure that the Articles of Incorporation and the Corporation Bylaws are created properly and address the stated needs of the owner while avoiding many more legal complications in the future.
Texas Estates : The Responsibilities of a Caretaker
Taking responsibility for a loved one who is incapacitated or physically weakened can be stressful to say the least. This task can be even more daunting if the loved one is an elderly parent or spouse. Most individuals do not like to contemplate death and having these conversations can be difficult. The first question that you must ask is “Have you seen an attorney to create a will?”
There are a few steps an elderly parent or spouse must take if suffering from a terminal illness such as cancer, Alzheimer’s, or ALS. First, the individual must set up a financial power of attorney. Second, the individual must then set up a durable medical power of attorney. Third, the individual must decide whether to have a will or allow their estate to pass intestate. This is the most important consideration and should be discussed at length with an experienced attorney.
There are multiple options an individual may consider when dividing a loved one’s estate. The size and nature of the individual’s assets will determine the method an experienced lawyer will utilize to ensure the estate is allocated according to the client’s wishes. Options include an attested Will with a self-proving affidavit, a Revocable Trust, or an Irrevocable Trust. These are just some of the choices an experienced estate attorney will discuss with an individual to ensure that his property and assets are safeguarded after the individual’s death.
Some estates, even minor estates, may be tricky to control and divide up according to the elderly parent’s or spouse’s wishes so it is wise to consult an experienced attorney to ensure that the estate’s property is properly taken care of after the loved one’s passing. Many people attempt to take the less expensive path by either going on some of the do it yourself websites, or by attempting to make a holographic will. Either option leaves open the likely possibility of an inaccurate or incomplete will. Such mistakes could actually end up costing far more than that initial lawyer would, especially if the estate ends up being contested in court. Your loved ones worked hard their entire lives to accumulate their assets, and it is imperative to consult an attorney who has the expertise to protect their estate.
The job of an attorney is to address their client’s needs by ensuring that an estate is properly documented and distributed according to the client’s precise wishes. Taking the inexpensive ‘do it yourself’ path may result in the needless reduction of an estate or may cause the assets of the estate to pass to relatives that the elderly parent or spouse did not originally intend. If for example a spouse wishes for all of her property in the estate to go to her husband but fills out a form on some website (to save a buck) and the form is defective or does not follow a specific Will’s Act Formality in Texas, then the will could be invalid. If a child contests the document in probate and wins, the property could pass intestate, and the children – not the husband – may receive some or all of the spouse’s estate. Situations such as this occur frequently.
It is important to seek an experienced attorney to ensure that the elderly parent’s or spouse’s property is distributed according to their wishes. Cheap alternatives give cheap solutions, and may create a more expensive problem when attempting to probate the estate. Consulting a lawyer to complete a will may cost a little more, but it is a small price to pay to ensure a loved one’s estate is properly distributed as intended without the considerable stress and cost of unnecessary litigation and related expenses.
NACOL LAW FIRM P.C.
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Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization