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All too often people die in Texas without a will. While a will can most certainly aid in the administration of an estate, reduce the chances of a will/estate contest, and provide clarification as to what shall be done with that person’s property and money, Wills also serve another important purpose that many people are unaware: a will eliminates the need for the estate to have to hire an additional attorney for probate.

In Texas, when an estate is administered without a will (intestate administration), an attorney ad litem (a neutral attorney) is appointed by the judge to determine who the rightful heirs are of the person who died. This requirement cannot be waived.

“but I am the only child of the deceased”

I often hear, “but I am the only child of my parent who died” or “I am the only heir.” Unfortunately, the Texas Estates Code does not provide for such considerations. Whenever a person dies without a will or the will has not been updated and children have been born after the will has been drafted and signed, an heirship determination MUST be done. And whenever an heirship determination must be done, an attorney ad litem must be appointed. This fee that must be borne by the estate in addition to the attorney hired to represent the estate and other fees, is known as the “No Will Tax” among probate attorneys.

Sec. 202.009 of the Texas Estate Code reads,

ATTORNEY AD LITEM. (a) The court shall appoint an attorney ad litem in a proceeding to declare heirship to represent the interests of heirs whose names or locations are unknown.

The court does not have any way of knowing who are the rightful heirs of the person that died so they rely on attorney ad litems. The attorney ad litem contacts various people that are not related to the deceased and asks them questions about the family history. Such questions relate to how many children the person had, if they adopted any children, if they ever took any children into their home to live with them, and their marital history. Then the applicant (executor or administrator) must furnish two witnesses who are unrelated to the deceased (“disinterested witnesses”) to appear in court and provide testimony as to the heirs of the deceased.

This whole process can be expensive and time consuming. No one wants to inconvenience a friend of the family to come to court and testify as to the familial history. And no one wants to pay for a second attorney in an estate administration.

How do you avoid the No Will Tax?

So, how do you avoid the “No Will Tax” and the appointment of an attorney ad litem? Get a will drafted and executed by an experienced estate planning attorney. And keep that will updated — if after you have a will done you have children, a marriage dissolve, a listed executor dies, a beneficiary in the will dies, or some other change occurs that relates to the will, then you should get your will updated by a licensed attorney.

Do I have to pay for an entire new will when I only need a small update?

No. Fortunately, the Texas Estates Code provides for Will Codicils. Will Codicils are short updates to the will that are placed on the front of the will instead of having to redo the entire document. Will Codicils are much cheaper and less time consuming than having to redo the entire will.

Stop putting getting a will off

No one wants to get a will. It is easy to put off. And it is difficult to think about your death. But, it is important to think about the potential hardship you may be imposing on others if you die without a will.

If you do not have a will or need to update your will, contact the Oxner Legha Law Firm in Cypress, which serves the greater Houston and Harris County region. We can meet in person or over the phone. We care about your future and shall do everything we can to make the process easy for you.

Call the Oxner Legha Law Firm at 346-327-9500 to schedule a consultation about creating a will.

Jason Oxner

Author Jason Oxner

Jason is licensed in the State of Texas and is a member of the State Bar’s Health Law Section, Real Estate and Probate Section, and Business Law Section. More about Jason Oxner.

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