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Five Common Misconceptions About a Will

A will is an estate document that describes your desires about how your property is dispersed after you die. If you do not have a will or estate plan upon your death then the Texas rules of Intestate Succession take over and mandate how your property is divided.

5. Myth: A spouse is responsible for their deceased partner’s bills
This is a common route used by shady debt collectors after a death in the family. They will call the still grieving family member and try to harass them into paying outstanding debts. Another wrinkle to this involved calling a grieving son or daughter and claiming that they are responsible for paying mom / dad’s debt.

General rule in Texas: Heirs are not personally responsible for the debts of the deceased. If an individual dies owing money, that debt becomes the obligation of the dead person’s estate. It is then the burden of the creditor to take the steps necessary to assert a claim and try to collect from whatever funds or assets the estate may have.

There are a few exceptions to this. First and foremost if a child / spouse signed a contract agreeing to guarantee or otherwise pay the debt, then they are obligated. This happens a lot with certain kinds of medical bills. A person will go to a hospital for cancer treatment and the hospital will put a document in front of the other party stating they will make good on the loan if the other person is not able (a roundabout way of saying they died). If the party has a contract signed or otherwise executed by the other spouse obligating them to pay, the Courts will generally uphold it. There are also exceptions for if the other party created the debt under the name of the deceased (example: Someone takes the dead guy’s credit card and goes shopping). There is also the issue of joint accounts.

If you find yourself being hounded by debt collectors to pay bills for a deceased person, cut off all communication and quickly seek out competent probate representation.

4. Myth: A will must be complicated.
In fact a will need not be complicated. Texas is one of a handful of states that allows for “holographic wills”, or a will in the testator’s handwriting. This way, someone wishing to make a will doesn’t even need an attorney. Instead they can sit down and write the whole thing on a piece of notebook paper. It need not be long winded. Care should be taken to sign and date the will. Also it should be clearly stated that the document is in fact the person’s will. Lastly the document must be entirely in the person’s own handwriting.

3. Myth: A will takes effect as soon as it is signed.
I have done many consultations with potential clients that started out “I should get _____ because I’m in the will” or “I’m allowed to do _____ because I’m the executor of the estate.” There is no magic to a will. Until certain things happen, a will is nothing more than a piece of paper with writing on it. One of those “certain things” that must happen is the person who wrote the will has to die. A will has no effect while the testator lives. After the person has passed, the will must then go through the process of being probated. This is the procedure by which the will is presented to a probate court and a judge decides whether the document meets the requirements to be a will. Only after the Court issues the appropriate orders can a document be said to be a legally valid and binding will.

2. Myth: A will must be notarized
This myth is related to number 4 above. The long and the short of it is a valid will does not need to be notarized. If it is entirely handwritten by the testator, then that is sufficient. If the will is typed, the Texas Estates Code requires that the document be signed by the testator in the presence of two witnesses who then also sign. No notarization required. Now there are steps involving a notary that can be taken to make the will easier to probate later on. I speak specifically of the self proved affidavit. This is a document that is added to the end of a will and if properly executed, allows the heirs to probate the will without having to call any witnesses. This document has particular requirements, one of them being that it *must* be notarized. Self proving affidavits are optional.

1. Myth: When I die, my spouse automatically inherits my property
I have personally seen this misconception raise havoc in people’s lives again and again and again. It is a resilient myth that will not yield to reality. But good meaning people, believing this to be true, refrain from making a will in the belief that it is not necessary since they are married. Too often the surviving spouse receives a rude awakening when they find themselves in a dispute with adopted or even their own biological children over division of the estate’s property.

The root of this misunderstanding can be traced to Texas Intestate Succession law. Simply stated, this is a set of laws enacted by the state of Texas that outlines what happens to your property if you die without a will. In certain limited circumstances yes, a surviving spouse may inherit all the deceased person’s property. However there are a number of major exceptions that will ruin that, such as if the married couple has children that were born outside the marriage (i.e. children with a different partner) or if the deceased doesn’t have any children at all but has surviving parents or siblings.

This is a very convoluted section of law and not obtaining competent legal advice can create a situation that will cause pain for your relatives years or even decades later.

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