The ability to specify the new owners of property upon death is an important and powerful privilege that each state grants to its citizens. The odds are, however, that you have not executed a will and if so, you would be in good company. Many famous and wealthy people have died intestate including President Abraham Lincoln and Texas billionaire Howard Hughes. Surveys reveal that between 60-75% of Americans die intestate. Intestacy causes the decedent’s property to pass to those individuals whom the state government believes the decedent would have wanted to receive the decedent’s probate estate upon death. None of the decedent’s family members or friends are allowed to present evidence to show that the decedent actually wanted his or her property to pass to them or to a charity. This article provides an introduction into the operation of Texas intestacy law.
I. Reasons Most Texans Die Intestate
Why do so many Texans fail to take advantage of their ability to write a will and control how their property is distributed upon death?
- A. Lack of Property.
One of the most commonly cited reasons people do not have wills is that they own very little property. There are, however, very important reasons for everyone, even persons with limited estates, to have a valid will. For example, the surviving parent of a minor child has the ability to nominate a guardian for the child’s person and property in the parent’s will. This is better than forcing the court to make the selection because the court may choose a person the parent would not have wanted to control the child’s personal or financial affairs. Another reason to have a will is that just because the estate is small now, does not mean it will not be large at the time of death. A person could win the lottery or a mail order sweepstakes, inherit a hefty sum of money under intestacy, be a significant will beneficiary, or land a high-paying job. Additionally, the person could die in a manner which gives the person’s estate a winnable survival action against the individual or business that contributed to the death, such as a drunk driver or the manufacturer of a defective vehicle.
- B. Unaware of Importance.
Many people are naive about the critical importance of having a will. They simply wander through life without giving thought to what happens to their property upon death. Perhaps worse, other individuals have serious misconceptions about at-death property distribution.
- C. Indifference.
Apathy is a contributing factor to why some people do not prepare a will. As the cliché goes, “You can’t take it with you,” and thus some people simply do not care.
- D. Cost.
An attorney-drafted will requires a person to spend money which the person might rather spend on the necessities of life or recreation. Many people cannot afford even the “bargain” wills some attorneys offer, and people with sufficient resources to incur the cost may have “better” things to do with their money.
- E. Time and Effort.
Even for simple estates, the will preparation process requires a significant investment of time. Here is a typical scenario. The client has an initial meeting with you. As you start to gather the information you need to write the will, you will often discover that the client has not given thought to all aspects of property disposition (e.g., secondary recipients if the primary beneficiaries die before the client) or may need to supply you with additional documentation (e.g., adoption decrees, divorce papers, property appraisals, etc.). Thus, after the client leaves, the client must both ponder various aspects of the estate plan and gather material for your review. The client then gets this information to your office in person or by mail, telephone, e-mail, or fax. You then conduct a second formal meeting, review a rough draft of the will, and engage in a more detailed discussion of options. In a straightforward situation, this may be when the client signs the will. In many cases, however, one or more additional meetings are necessary. If you consider the client’s time spent on preparing, traveling, waiting, and meeting, you can appreciate that will preparation requires clients to sacrifice sizable blocks of time and expend considerable effort.
- F. Complexity.
Wills may become extremely complex, especially if the estate is large enough to trigger tax consequences. It is probably safe to say that most potential testators do not view complexity as a stimulating challenge. Rather, complexity tends to dampen any enthusiasm that may exist about executing a will.
- G. Admission of Mortality.
In the past, many people believed that they would not live long after executing a will, even if they were then in good health. For many, this belief persists today. Because “personal death is a thought modern [individuals] will do almost anything to avoid,” people procrastinate (usually indefinitely) the preparation of a will as a conscious or unconscious defense against admitting their own mortality. (Thomas Shaffer, The “Estate Planning” Counselor and Values Destroyed By Death, 55 Iowa L. Rev. 376, 377 (1969).)
- H. Reluctance to Reveal Private Facts.
To prepare a good will, you must inquire into your client’s personal and private matters. For example, you need to know about children born out of wedlock, the value of property, medical conditions such as a diagnosis of AIDS, cancer, or Alzheimer’s, and family situations (e.g., marital discord and infidelity, uneasy relationships with children, etc.). Your client may not want to open his or her private life for your inspection.
Historical Background.
Early in the evolution of civilization, societies developed customs and laws to control the transmission of a person’s property after death. Our modern intestacy laws are traced originally to the Anglo-Saxons. The Norman Conquest of 1066 A.D. played a significant role in the development of these rules. William the Conqueror was irritated that English landowners refused to recognize his right to the English Crown after his victory.
Accordingly, William took ownership of all land by force and instituted the Norman form of feudalism. Under this system, the Crown was the true owner of all real property with others holding the property in a hierarchical scheme under which lower ranked holders owed various financial and service-oriented duties to higher ranked holders.
As a result, real property became the most essential element in the political, economic, and social structure of the Middle Ages. The Crown and its tough royal courts controlled the descent of real property. The basic features of descent included the following rules. (1) Male heirs inherited real property to the exclusion of female heirs unless no male heir existed. The reason underlying this discriminatory preference for male over female heirs was based on the feudal incidents of ownership. One of the primary duties of lower ranked holders of property was to provide military service to higher ranked holders. Under the then existing social climate, women were deemed unable to perform these services and thus were not able to inherit realty if a male heir existed. (2) If two or more males were equally related to the decedent, the oldest male would inherit all of the land to the total exclusion of the younger males. This is the rule of primogeniture. Primogeniture was applied because the Crown thought it was too impractical to divide the duty to provide military services as well as to subdivide the property. (3) If there were no male heirs and several female heirs, each female heir shared equally.
Before the industrial revolution, personal property was of lesser importance. There were no machines or corporate securities about which to worry. Instead, most chattels were of relatively little value such as clothing, furniture, jewelry, and livestock. Thus, the Crown permitted the church and its courts to govern the distribution of personal property. The ecclesiastical courts based distribution on canon law which had its foundation in Roman law. In general, personal property was distributed equally among equally related heirs. There was no preference for male heirs and the ages of the heirs were irrelevant.
After centuries of movement toward a unified system, the English Parliament passed the Administration of Estates Act in 1925 which abolished primogeniture and the preference for male heirs as well as providing uniform rules for all types of property. Most intestacy statutes in the United States make no distinction based on the age and sex of the heirs nor between the descent of real property and the distribution of personal property. However, Texas and a few other states retain this latter common law principle and provide different intestacy schemes for real and personal property under certain circumstances. (See generally Darien A. McWhirter, The Ancient Origins of Texas Probate Law, 49 Tex. B.J. 1061 (1986).)
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Excerpted from the article The Basics of Texas
Intestate Succession Law at www.professorbeyer.com and reproduced with permission from the author.
Gerry W. Beyer is Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law.
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