Almost nothing is as sacred to Texans as the ownership of real estate, free from the claims of others. For decades, boundary disputes have erupted into family feuds, squatters run off at gunpoint, and poachers bear the brunt of Texas-style citizens arrests. We take our ownership of this precious resource seriously, and stop at nothing to protect our own slice of Texas.
However, when conflicting claims to real estate occur within a single family, the resulting misunderstandings, disagreements and hurt feelings often last for generations. Consequently, it is vitally important for every property owner to consider how they want title to their real estate assets divided upon their death, and make sure that such wishes are clearly expressed in a properly drafted Last Will and Testament.
In most situations, Texas property owners can leave their property to whoever they want upon their death. There are few restrictions, and the desires of the deceased will be honored in most cases. However, those desires must be in the form of a valid and enforceable Will to be given any effect.
Many people do not understand that a Will has no enforceability or effect until the property owner dies. Prior to death, the Will is not worth the paper it’s written on, and can be changed, modified, or destroyed at the whim of the owner. But at death, the Will serves as the official statement of the owner’s last desires, and a probate court will order such desires to be effectuated.
But only if there is a will. Many people are concerned about the cost involved in drafting a will, much less probating a will after death. But in fact, a will is a relatively inexpensive legal instrument to draft, and in Texas, at least, the probate process only costs a few hundred dollars in most cases.
Many a Texan has been taken advantage of by unscrupulous attorneys pushing unnecessary expensive trust packages on unsuspecting homeowners designed to avoid the probate process. For most folks with normal sized estates, however, the probate process is quick, cheap and effective, and far less costly than the setup of an unnecessary trust.
If a property owner dies without a will, however, the real fireworks begin. Despite any promises made prior to death, if a beneficiary is unable to produce and probate a last will and testament within four years of the owner’s death, the State will decide who obtains ownership of the property. And how does the State decide? By applying a non-flexible set of rules and formulas known as intestate succession to the deceased owner’s factual family situation. As a result, if a will is not produced for probate which clearly sets out ownership after death, the Texas intestate succession formula may yield some surprising results. In some instances, title may go to a surviving spouse. But if the decedent had children from another relationship, all her children from any relationship may jump into the ownership picture, even if the surviving spouse held a community property interest in the real estate. Tracking down illegitimate or estranged children, heirs of same, long-lost siblings, etc. can really complicate and delay the settlement of an estate. And true to human nature, many times a long-lost relative who learns that they have inadvertently inherited an interest in a property through the application of intestate succession laws will not voluntarily release their inadvertent interest without some monetary contribution. Big surprise there.
Ownership under intestate succession is determined by applying the intestacy laws to the family facts, and then evidencing that factual background through the filing of an Affidavit of Heirship in the real property records of the county in which the property is situated.. To ensure its authenticity, most Affidavits of Heirship should be signed by at least two disinterested parties who have no direct relationship with the decedent, but have personal knowledge of the facts surrounding the decedent’s familial status. And if a will is found, relatives who may have been omitted from the will cannot circumvent the decedent’s written desires by filing an Affidavit of Heirship instead of a probate. Such an action can lead to serious legal consequences.
So today’s version of the Hatfield vs. McCoy family feud over real estate is more often a war between children, later-acquired spouses, cousins, siblings and the like. In order to avoid the inevitable blood-letting between blood relatives, a property owner is well advised to express their interests on paper in a properly drafted will, kept by a trusted loved one who will proffer it up immediately upon death so that a probate court can effectuate the decedent’s desires.