Making the Argument

The Hard Truth: If You Don’t Have A Will, The Government Will Make One For You

By Michelle Fulton

September 16, 2004

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: Why do I need a will? Won’t everything just go to my wife when I die? I don’t feel like writing a will right now. I’m pretty young and healthy. So what’s the big deal?

A: We avoid the topic of death and our own mortality like it was the plague. We dismiss our loved one’s attempts to discuss the subject with phrases such as “Don’t worry, we’ll get to it later” or “I’m not old enough to need to worry about it.” We live as though our lives are guaranteed for decades to come, when in reality the chances of dying young are greater now than they have been in past decades.

Any person who is age 18 or older, who has any real or personal property of value, should have a will, regardless of how healthy you are. If you fail to plan for the future, the government will create a plan for you, and that plan could have devastating effects on the ones you leave behind. Also, your property might not be distributed according to your desires.

Most people have an idea of who they want to give their property and possessions to when they die, and many young couples with children have a good idea of who they want to be guardians of their children. If you fail to reduce your wishes to a writing that satisfies the state’s requirements, the courts will step in and decide the issue. The court does not give favor to the cousin you were closest to or the sister you trusted the most. The court will award both possessions and property to your closest living relatives, with no regard for your feelings or wishes. Consider the following examples:

Jane and John Doe are married and both have grown children from a previous marriage, and no children together. John is diagnosed with a terminal illness and the prognosis is not good. He tells his children that he wants all of his estate to go to his wife upon his death, and has a will prepared to that effect. However, he fails to sign it because he believes that he doesn’t need to and is going to be cured. As a result, he dies without a will.

Despite the fact that he wanted his wife to take everything, his children disregard his wishes, take her to court, and end up taking half of the estate. She is forced to sell the home they shared, give up the rental property they owned, and move to a smaller home. His failure to plan caused his widow additional stress and unnecessary heartache. This is not what he wanted, but because he failed to plan, this was the undesirable result.

Now, let us take a look at the other side of the issue. Harry and Mary Doe had been married for 40 years and had three grown daughters, one of whom was deceased. The youngest daughter had been sponging off of their IRA for years, while the older daughter had been the caretaker, dutifully traveling back and forth from her home 6 hours away to take care of her ailing parents. Harry passed away, and his will left his entire estate to his wife Mary.

Mary desired to disinherit the younger daughter because she had already received enough money over the years, so she consulted an attorney and asked how she could do it in such a way that would leave no window of opportunity for a will contest by the younger daughter. She followed the attorney’s advice, executed a will leaving her estate to her oldest living daughter and disinheriting the younger one.

The younger daughter found a copy of the will and shopped it around to various lawyers in hopes that one would take her case and contest the will. However, because the will was properly executed and complied with all of the statutory requirements, no lawyer would touch it. As a result, the estate went to the oldest daughter in accordance with her mother’s wishes, and the family feud was stifled.

The moral of the story is this: If you want a say so in how your property passes upon your death, then you need to execute a will. The sooner you do it, the sooner you’ll be able to relax and enjoy life more fully, knowing that no matter what comes, you have taken care of those you love the most.

Michelle Fulton is an attorney at The Fulton Law Firm, PLLC. If you have a legal problem you would like her to address, you may e-mail your request to michelle@fultonlawfirm.com or mail your request to her at 806 Hwy. 3, Houston, Texas 77058.

1. The Hard Truth: What Happens to Your Young Children When You Die? It May Not Be What You Think - August 5, 2004

2. The Hard Truth: Guardianship of Minors Is a Serious Issue - Plan Wisely - August 16, 2004

3. The Hard Truth: Designate Your Guardians in Accordance With the Law...and Do It Quietly - August 23, 2004 article

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