By the Estate Planning Attorneys at Smith & Garg, LLC, serving The Woodlands, Spring, Houston, Conroe, Humble, Kingwood, Tomball, Cypress, Huntsville, Westchase, Southwest, Sugar Land, West Oaks, Alief, Memorial, River Oaks, Stafford, Katy, and Missouri City.

SO WHY DO YOU NEED A WILL OR A TRUST?

Many people view creating a Will as something they “should” do, but continually put it off. Except in cases of failing health or other grave circumstances, many do not regard the preparation of a solid estate plan with any sense of urgency. This fact is not surprising. It is human nature to avoid thinking about our own mortality, and the subject of a Last Will and Testament often makes people uneasy. However, a Will should be viewed as a matter of preparedness—as a tool for lessening a burden on your loved ones. Throughout your life, you work hard to protect your family and secure your future; why should you approach preparation for your death any differently?

There are several key reasons why everyone—yes, everyone—needs a Will. The first of these is quite simply choice. A Will gives you the power to choose who will receive your property upon your demise.  You work hard during your lifetime to acquire financial wealth, a homestead, vehicles, and personal property, and therefore it should be you who decides how your assets will be distributed to your family, friends, charities, or other persons and entities. Regardless of the size of your estate, a Will allows you to allocate your money and belongings as you see fit.

It is also important to consider the alternative. If you do not choose for yourself “who gets what,” the State of Texas decides for you. Texas law provides default “intestacy laws” that dictate how your probate assets will be distributed if you do not create a valid Will. These default rules may or may not follow what you would have wanted for your estate. For example, if your spouse dies, and that spouse had a child from a previous marriage or relationship (your step-child), you might think—since Texas is a community property state—that you as the spouse will inherit everything.  Not so! The intestacy laws provide that your step-child will inherit ½ of the community property, and you will be left with the remaining ½. Further, you will only receive 1/3 of your spouse’s separate belongings (property owned prior to marriage), with the step-child receiving the other 2/3. Drafting a Will allows you to change this result, and choose for yourself who gets—and maybe more importantly, who does not get—your property. Thus the bottom line is this: since you put in the effort to acquire assets during your lifetime, you should likewise put in the effort to decide who will inherit those assets at your death.

A second key reason for creating a Will is to take advantage of the opportunity to appoint a guardian for your children. If something were to happen to you and your spouse while your children are under the age of 18, you—not a court—should be the one appointing who will take care of them.  This is a topic you should discuss with your proposed guardian(s) in advance; it is important to make a confident decision regarding who will receive custody of your minor children and manage their inheritance and other finances.  A Will provides the peace of mind that comes with knowing your children will be well cared-for if the need for a guardian arises.

Along the lines of providing for your children, a Will also allows you to decide not only how much of your estate your loved ones will receive, but also how they will receive it. Using a testamentary trust within your Will provides a great deal of flexibility and control with regard to the manner in which your assets are distributed. If, for example, you don’t feel your children should receive their inheritance at 18 but should wait until they have the maturity to handle the property—say, at the age of 25—you may dictate in your Will that their share should pass to a trust for their benefit until the occurrence of a certain event or their reaching a certain age. Or perhaps you have a blended family situation where both spouses have children from previous marriages, and you want to ensure your own children will be taken care of. A Will allows you to create a trust giving property to your spouse for his or her lifetime, but then to your children upon your spouse’s subsequent death. Significant estate, gift, and generation-skipping taxes can also be avoided with proper use of trusts within a Will.

Finally, another major benefit of creating a Will is the fact that it will make handling your affairs after your death significantly less burdensome and often less costly on your family. In Texas, we are fortunate to have a relatively straightforward and streamlined probate process. With a legally sound Will, the probate process can be handled quickly and effectively so that title to your property is changed to your loved ones with little complexity. Administering an estate without a Will often requires an Heirship Proceeding in the probate court, and can become a lengthy and expensive procedure.

Thus although the creation of a Last Will and Testament is not the most cheerful of processes, it should become a priority rather than a procrastination. Again, if you work hard to provide for your family during your lifetime, it is imperative that you also take the responsibility to provide for your final affairs.

Call Smith and Garg today at 281.210.0010 or complete our Contact Form and let us assist you with your wills and trusts.