As previously discussed, a major disadvantage to dying intestate is the lack of control you have as to who will inherit your property. If you wanted to leave a large portion of your estate to a special nephew, you must do so by will. If you do not create a will, your nephew only receives his intestate share of your property, as established by the Texas Probate Code. If you die with a surviving spouse and children, they will receive most of your property, and your nephew may not receive anything. This would not occur had you created a will because of the Texas laws against forced heirship with testate residents. Similarly, if you intended to leave your girlfriend a portion of your estate, she will not receive anything under the Texas Probate Code’s intestacy rules of succession because she is neither your surviving spouse nor a blood relative. If you want to leave property to an unrelated caretaker who cared for you when you became ill, your caretaker will not receive anything pursuant to the intestacy statute.
Dying intestate may lead to unnecessary delays during the probate process, and a significant amount of time may pass before your heirs will receive their inheritances. In the interim and during the delay, your heirs may no longer be alive to receive their property. A probate court may have to locate missing heirs and confirm their family ties to you before making distributions. Your heirs could also contest their intestate shares by filing challenges with a probate court.
Stephen A. Mendel, Estate Planning Attorney
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