“Why Would I Need A Will?” An Educational Hypothetical, Vol. 1.01

Redding Law, PLLC intends this educational hypothetical illustrate a situation where the laws of the State of Texas could lead to extremely unexpected results, but could have been addressed with a Will. However, the reader should note that this explanation is specific to Texas and is not intended to be legal advice for any particular person or situation. All rights reserved.

Hypothetical

Bob and Sue, a young married couple, live in a rented apartment with their one-year-old son Matt. Bob’s father, Gary, passes away leaving Bob a fully paid for home. Bob and Sue, understandably excited, move to the inherited home with their son Matt. Neither Bob or Sue have ever made a Will – they don’t think they need one. Sadly, a year later, Bob suddenly and unexpectedly passes away. After Bob dies, Sue shies away from consulting a lawyer, as she has no issues and it seems there was no need for any extra expense.

Bob’s wife, Sue, and her son, Matt, continue to live in the home for several years after Bob’s death. Then, Sue gets a great new job offer in a city across Texas that she is excited to take. Sue decides that she will sell the home so that she can buy a new home when she moves to start her new job. She meets with a realtor who suggests that she contact a lawyer to ascertain what portion of the home her husband might have owned.

So, Who Owns The House?

While Sue does have an interest in the home, it may surprise you to hear that the home is, practically speaking, owned by Matt – Bob and Sue’s now four-year-old son! That result is understandably very surprising to many people. Sue likely assumed that because it was her husband who died, the house they lived in with their son would be hers. To put a complicated issue simply, because Bob inherited the home he and his family moved into that meant the property was his separate property. Under the applicable Texas law when it comes to separate property, “the surviving spouse [Sue] is entitled to a life estate in one-third of the person’s land, with the remainder descending to the person’s child or children and the descendants of a child or children.”

What does that mean? It means that Matt owns all rights to the home beyond his mother’s one-third life estate interest. That life estate gives Sue very few rights. Most importantly, it will be impossible for Sue to outright sell the home and buy a new one when she moves. Further, since Bob did not have a Will, the Administration of Bob’s Estate in Court must necessarily be more complicated and more expensive. Beyond that, the situation gets even more complicated in regards to who can manage the home on Matt’s behalf. Who can sell it, who pays the taxes, insurance, and repairs? While there are different alternatives to manage the home for Matt most, if not all, will require a separate Court proceeding and likely considerable expense.

What If There Had Been A Will?

While every situation for every client is different. However, here, it would have been simple for Sue’s expectations to be met with a simple Will that left everything Bob owned to his wife. The house would have been Sue’s and she could have sold it and bought another. A qualified Attorney could also helped Bob and Sue explore other options to resolve the issue of the separate property house. Many people shy away from making a Will or consulting an attorney. In this case, meeting with an attorney would have, at the very least, made Bob and Sue aware of the potential issues. Hopefully, that would have avoided a great deal of complication and expense.