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
www.naela.org. 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?
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!