What is a will?

A will (sometimes called "Last Will & Testament") is a document that specifies how a person wants his or her property taken care of after he or she dies. Most commonly, a husband gives everything to his wife (and vice versa). If the husband and wife die together, then usually they want everything to go to their children. If their children are younger than 18, they specify who they want to take care of their children on their behalf (in other words, they name a trustee/guardian for their minor children).

Do I need a will?

Short answer: No.

In Texas, when you die without a will, the law has certain default provisions for how your property will be distributed. 

For example, if you are married and have kids from another marriage, then your house will be split between your spouse and your children--even if you bought the house with your spouse. See Texas Estates Code §201.003(c). This assumes that you died without a will (legal term: "intestate") and there is no right of survivorship or "transfer on death" deed that was created for your house.

As you can imagine, this is often not what people want to have happen, so they create a will or request a Ladybird Deed. 

What's the difference between a will and a trust?

Both documents specify how you want certain property to be distributed. A trust can either be created while you're alive or after you pass away. In my practice, I typically recommend a trust in three scenarios: (1) if you want to guarantee that your assets (typically over $1 million) are properly managed (usually by a professional) for the benefit of your children or grandchildren; (2) if you have children under 18 and we need to plan for what would happen if you and your spouse die together; (3) if you have a special needs child that you'd like to make particular arrangement for so their social security is not affected.

Most people think they need a trust to avoid probate, but there are several more cost-effective ways to avoid probate if you're interested.

What is probate?

Probate is the process of going to court after a person dies to take care of his or her property. If a person dies and has a valid will, then we can usually proceed in one of three ways: (1) independent administration; (2) muniment of title; (3) affidavits of heirship. Which route we take depends on the person's assets, liabilities, and familial situation.

How do I avoid probate?

Every person's situation is unique, but here is the most common scenario that typically plays out:

-Husband and Wife are joint owners on their bank accounts, investment accounts, car titles, and home.

-They name each other as joint owners with right of survivorship on their bank account. Then they can name their children (or someone else) as a "payable on death (POD)" beneficiary.

-Same for the investment accounts. If Husband owns his investment account, then he can name Wife (or someone else) as the beneficiary.

-Similar for the car title as well. Husband and Wife can create a right of survivorship or name a beneficiary for the car.

-Husband and Wife sign a Ladybird Deed and create a right of survivorship for their house. When one spouse dies, then the surviving spouse still owns the house. When the surviving spouse dies, then the house goes to the "grantee" the LadyBird Deed.

-Husband and Wife sign a Ladybird Bill of Sale for their personal property in their home (for example, furniture, books, dishes, etc.) so that upon their passing, the person property immediately goes to the person they choose.

This essentially takes care of a person's assets so that there is likely no reason to probate a person's will. However, as mentioned above, each person's situation is unique, so avoiding probate may not be possible. If we do have to probate a will, then I still look for the most cost-effective way to proceed.

What is a Lady Bird Deed?

A Ladybird Deed is a document that allows you to convey your property to someone else, but retain ownership of the property for your entire life. Then, upon your death, it would automatically transfer to the person(s) of your choosing. It's one way that could help avoid probate.

Usually, a husband and wife will sign a Ladybird Deed for their home. WIthin the deed, they will create a "right of survivorship" so that the property goes to the surviving spouse first, and then when the surviving spouse dies, then the property goes to the name "grantees" (usually the children). What is probate?

Probate is the process of going to court after a person dies to take care of his or her property. If a person dies and has a valid will, then we can usually proceed in one of three ways: (1) independent administration; (2) muniment of title; (3) affidavits of heirship. Which route we take depends on the person's assets, liabilities, and familial situation.

Do I still own my property if I sign a Lady Bird Deed?

If a competent real estate attorney drafts it, then yes. You can sell the property, mortgage the property, rent the property. You can even paint the kitchen red. It's your property for as long as you live. Additionally, you can change the "Grantee" on the Ladybird Deed at any time. 

How do I get someone’s name off of the deed?

It depends on two main factors: (1) whether the person had a will; and (2) whether there is any contact or disagreement with the person’s “heirs at law.”

If the person had a will, the process is usually straightforward.

If the person did not have a will, then our options are limited depending the person’s “heirs at law.”