Here’s yet another story on why avoiding probate is a good idea. I represent a North Dallas, Texas man whose wife died in an auto accident. She died “intestate” meaning without a Will. In fact, she didn’t have any estate planning in place. She didn’t have a Will, Trust, Power of Attorney, Medical Power of Attorney, Advance Directive / DNR (Do Not Resuscitate Order) or anything else. It just so happens that the wife purchased their family home before she and her husband married, making it her separate property and not their community property. The difference is really big in the eyes of the law. The husband wants to sell the house and move out-of-state near his parents so that he can get some help raising their young children.
Under the Texas Law of Intestacy, and the law of Descent and Distribution, since the house was separate property, the children will receive ownership of the house subject to the husband’s life estate. But, since they are minors, the court is going to likely require that the estate be administered, that a guardian ad-litem is appointed for the children, and the court will scrutinize any sale of the house to make sure that the children’s best interests are protected. In short, the process is going to be long, expensive and frustrating because of the court oversight.
Since she didn’t have a Will or a Trust or any other legal planning, we will never know what the wife wanted, but, like most people, we believe that she would have wanted it to be easy on her husband and children and not lengthy and expensive. Her husband is now in a real bind because he has to continue to make house payments on the house note while he pays rent on a rent house down the street from his parents. It will likely be six months before he’s in a position to put the house on the market and, the process is even more complicated because he’s now living out of state and has to travel back and forth to Dallas for court.
If they had been clients of ours before the wife passed away, through the use of a Trust, the husband could have sold the house immediately without the delays from court intervention or oversight and without legal expense. They would likely have had a Will too, but as a “secondary” document, with pour-over provisions. That means that their primary estate planning tool would have been their Trust with the Will serving as a back-up.
It’s a sad story made even sadder by the predicament that the family is left with. The frustrating thing is that it all could have been easily avoided. If you want your family to avoid complications like these, contact our office so that we can speak about the options available to you.
Donald R. Jones, Attorney
The Jones Law Firm
3109 Carlisle St., Suite 100
Dallas, Texas 75204
214.220.2130 office | 214.220.2131 fax