Page 6 - San Antonio Vol 1 No 3

JOSEPH L. KOEHL | Estate Planning
What If I Die Without a Will?
Many Texans have heard that a person’s spouse inherits all his or her assets in the ab-
sence of a will. e basis for this belief may be that, due to a 1993 statutory change, all a decedent’s community property passes to his or her spouse if all surviving children and other de- scendants are of the same marriage. However, if there are any children from a prior marriage or there is sep- arate property, the statutory scheme becomes more complicated.
e rules of intestacy are best illus- trated by example. Assume that Jack dies without a will, married to Jessica. Jack has three children – Samantha and Anthony, from a prior marriage, and Celeste, from his marriage to Jessica. Jack owns a vacant lot in San Marcos as his separate property and Jack and Jessica owned their house in San Antonio as community property. A bus runs a red light; Jack dies. Be- cause a spouse has certain homestead rights under the Texas Constitution, Jessica would have the right to occupy the house for life, but Jack’s one-half community interest would vest equal- ly in Samantha, Anthony, and Celeste, subject to such rights. Samantha, An- thony, and Celeste would inherit the San Marcos lot, subject to a one-third interest in Jessica for life. If Jessica de- cides to sell the house, the title compa-
ny will require, at a minimum, a davits of heirship setting out Jack’s heirs and a deed from Jessica, Samantha, Anthony, and Celeste. During
Jessica’s lifetime, Samantha, Anthony, and Celeste cannot sell the lot without her involvement. Although Jessica’s homestead rights would make her liable for expenses of upkeep of the house, they would also entitle her to receive the income from the property.
When multiple generations die without wills, the problems com- pound. Assume that Bill and his recently deceased wife had the fol- lowing children: Derrick, Vladimir, and Cookie. Assume Bill has a son, Marcel, from a previous marriage. Bill dies owning Blackacre, situated in the Eagle Ford Shale. Derrick, Vladi- mir, Cookie, and Marcel would each acquire an undivided one-fourth in- terest in Blackacre. But let’s assume that Derrick plans to leave his estate to his long-distance girlfriend, Cindy. In addition, assume that Derrick has a strained relationship with Marcel. If Derrick outlives Bill, never gets around to signing his will, and dies with no children, Marcel, as Derrick’s half-brother, would be entitled to one- h of Derrick’s estate, and Derrick’s other two siblings would each be en- titled to two- hs of his estate. Der- rick’s siblings obtain a davits of heir-
ship from disinterested witnesses and record them. ABC Oil o ers to lease Blackacre, but when Marcel refuses to sign, moves on. Vladimir, Cookie, and Marcel opt to sell Blackacre.
Now Becky, a woman who has been living with Derrick, les an a davit in which she claims to be the common law spouse of Derrick. is con icts with the previously recorded a davit stating that Derrick’s only heirs are Vladimir, Cookie, and Marcel. e only title company in town declares that Blackacre cannot be sold without a judicial declaration of heirship. is is a costly procedure – once the appli- cation is led, the probate court must appoint an attorney ad litem to rep- resent the interests of any unknown heirs, which will cause Derrick’s es- tate to incur additional legal fees and court costs, not to mention the cost from the likely litigation pursued by the purported common law spouse.
A simple will would have avoided each of the situations above. If Jack had simply le the house to Jessica in his will, no a davits would have been necessary to sell the house, and only Jessica would have needed to sign the deed. If Derrick had le his estate to Cindy in his will, as he intended, Cindy alone could have signed the oil and gas lease. Some of these situations could have also been avoided by the use of a transfer on death deed, which was created by statute in 2015. How- ever, in each of these cases, instead of utilizing the simplest estate planning, the individual opted, even if by de- fault, to let the State of Texas decide how his assets should pass.
If there are any children from a prior marriage or there is separate property, the statutory scheme becomes more complicated.”
Joseph L. Koehl practices in the areas of estate planning and probate, as well as oil and gas and real estate mat- ters. He is board certi ed in oil, gas and mineral law and is a member of the State Bar College. Joseph received his Bachelor of Arts from the University of Texas at Austin and his law degree from Baylor Law.
ATTORNEY AT LAW MAGAZINE · SAN ANTONIO · VOL. 1 NO. 3 6