The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
Having a valid will is an important need in every family, but in a “blended family,” that importance is magnified many times over. For purposes of this article, “blended family” shall be defined as a marriage where one or more of the spouses has children from a prior relationship.
For demonstration, the following fact scenario is offered as a possible situation which could arise and where “in fact” a version of these facts does arise frequently.
I. Jane and Joe Sr. marry and start a new life together.
II. At the time of the marriage:
a. Joe Sr. has two children, Joe Jr. age 7, and Sue age 10, from a prior marriage and who live with their mother.
b. Jane has one child, Sally, who is 1 year old.
III. Joe Sr. has no Will.
IV. No formal adoption procedures were done for Jane to adopt Joe’s children or for Joe to adopt Jane’s child.
V. Jane and Joe Sr. have one child together (Dawn).
VI. Joe Jr. married when he was 20 years old and had two sons, Todd and Tad (Joe Sr.’s grandchildren) then Joe Jr. was killed in an automobile accident.
VII. Thirty-five years later Joe Sr. had a heart attack and died without a Will.
VIII. At the time of Joe Sr.’s death, Joe and Jane owned the following property (all of which was community property because it was earned after marriage and was earned in Texas):
a. A residence valued at $400,000;
b. A stock portfolio worth $300,000;
c. Personal items worth $5,000;
d. A family-owned and operated Widget business. One of the key employees agreed to take over the debts and pay Joe’s estate $150,000 for total ownership if approval could be obtained from all of the heirs.
NOTE: Before you read further and discover how property will pass under these facts, you are encouraged to predict the results and then read on to determine if you are correct.
The questions to be answered are – How will Joe Sr.’s estate pass under Texas laws of intestate succession? What will the financial impact be on Jane? Will a probate proceeding be required? How can a harsh result be avoided?
Intestate Succession – The total value of the community estate owned together by Joe Sr. and Jane equals $855,000. It will be divided with 50% (the part she already owns) going to Jane and the other 50% passes as follows:
- An undivided 1/6 of $855,000 totaling ($142,500.00) will pass to Sue (Joe Sr.’s daughter from his first marriage);
- An undivided 1/6 of $855,000 totaling ($142,500.00) will pass to Dawn (Joe Sr.’s daughter from his second marriage);
- An undivided 1/12 of $855,000 totaling ($71,250.00) will pass to Todd (son of Joe Jr. and grandson of Joe Sr.);
- An undivided 1/12 of the total ($71,250.00) will belong to Tad (son of Joe Jr. and grandson of Joe Sr.);
- Jane’s daughter, Sally, will get nothing even though Joe Sr. was the only father she has ever known;
- Jane will retain a life estate in the home, giving her the right to possess it for the rest of her life, but she will not be free to sell, refinance, etc. without the consent of Sue, Dawn, Todd and Tad. (This becomes even more complicated if Todd or Tad are still minors or if one of them also predeceases Joe Sr.).
Impact on Jane –
- The home previously owned by Joe and Jane is no longer theirs alone; her interest is an undivided 50% plus a right of possession during her lifetime.
- The stock portfolio that she and Joe so carefully built will need to be split in half, and she will be entitled to only $150,000 of the original $300,000 sum.
- Jane will get only $75,000 from the sale of the business if it can be sold. It should be noted that even though Jane and Joe Sr. worked hand-in-hand to build the Widget business and she might wish to accept the offer of purchase from the key employee, it will also need to be approved and accepted by Sue, Todd, Tad and Dawn. Absent approval by each of them (even if they are adults and capable of giving approval), the problem will likely require court intervention to permit partition (i.e., division) of the property
- Jane will get $2,500 of the value of Joe’s personal items.
Will a Probate proceeding be required? Unfortunately, and to add insult to injury, to protect even these rights for Jane, it will be necessary to go through a more complex procedure than simple probate of a Will. This procedure would typically be an application to determine heirship coupled with an application for administration of the estate. This procedure may or may not be independent of court supervision and may require the posting of a substantial bond.
How to avoid this result. The special problems of the “blended family” are easily avoided with a professionally prepared will. In addition, it is probable that the expense involved in having a will professionally prepared and ultimately having it probated will be far less than the heirship and administration procedure described above.
If you or your loved ones are part of a “blended family,” you may wish to find an attorney of your choice to draft or update your will. By drafting even a simple will, each and all of the distasteful and unintended consequences of a death in a blended family can be avoided. You will not only be able to decide how your property should pass, you will make it possible for the probate procedures at the time of your death to be more simple and less expensive.
James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see- www.houstontxprobate.com
IF YOU WISH TO SUGGEST A TOPIC FOR THIS COLUMN, SEND TO:
JAMES M. BRIGHT
14340 TORREY CHASE BLVD., Suite 150
Houston, TX 77014