REASONS TO HAVE A WILL – OR NOT
There are usually very good reasons to have a will, including knowing that your wishes will be followed and that settling your affairs will cost less money and take less time. But sometimes it may not make a difference.
You do NOT need a will if
Your only debt is a mortgage on your homestead and you leave no more than $60,000 in personal possessions and household goods and $75,000 in other assets, such as a bank account, IF two people who will not inherit can testify who your heirs are and your heirs agree to pay your debts and divide what remains according to the Texas Law of Descent and Distribution in an Affidavit of Small Estate.
You only leave your home and leave it to your spouse or a minor child or a disabled adult child or your home is exempt from the Texas Medicaid Estate Recovery Program for some other reason and two people who will not inherit can testify to who your heirs are in an Affidavit of Heirship.
You only leave real property deeded to someone else in a deed which becomes effective on your death, such as a “Lady Bird” Deed, Transfer on Death Deed or a loan agreement secured by a reverse mortgage.
Your estate, whether alone or in addition to a home or other real property described in the previous two paragraphs, consists only of financial instruments such as bank or brokerage accounts or an annuity or a retirement account on which you have named a beneficiary or secondary beneficiary other than yourself or your estate or of Texas property held jointly with right of survivorship — and the person, charity or trust you name survives you.
You do not mind leaving your heirs the expense of filing an Application for Determination of Heirship.
You DO need a will if
There might be real or personal property which you own individually and your estate does not fall under one of the categories above.
You want to choose who settles your affairs.
You want to choose who receives specific property or a specific percentage of all or part of your property.
There are children not born to or adopted by both you and your current spouse.
You have created a trust which is to be partly or fully funded when you die.
You have an heir or want to name a beneficiary who sometimes lives in or may move to a state or country with an inheritance tax.
You have property in a state or country with an estate or inheritance tax.
When you die, your estate might exceed the federal estate tax exclusion ($5.49 million for an individual or a total twice that for the combined estates of a married couple in 2018.) You will need other estate planning arrangements as well.
Whether or not you have a will
Your debts must be paid. Debts owed you must be collected. Your property must be distributed.