Five Biggest Mistakes to Avoid Before Death

How a Little Planning Today Can Save Your Family Time, Money, and Heartache Tomorrow

The biggest probate problems rarely begin after someone dies. They usually begin years earlier, when someone delays making a plan or assumes everything will simply work itself out.

Most people do not wake up one morning and decide to leave their family with a probate problem. In fact, most of the families we meet have done many things right. They worked hard, bought a home, raised children, saved for retirement, and honestly believed they had taken care of everything.

Unfortunately, we often discover that one or two overlooked issues that have created problems no one expected. Sometimes a husband assumed everything would automatically pass to his wife. Sometimes parents believed their children would work it out. Sometimes a will was signed twenty-five years ago and forgotten. Other times, no one ever got around to making a will because there never seemed to be a convenient time.

The result is often the same. Families who are already grieving find themselves trying to untangle legal issues that could have been avoided with relatively simple planning.

The purpose of this article is not to frighten anyone into making an estate plan. It is to explain five mistakes we repeatedly see in Texas probate matters and offer practical suggestions for avoiding them. No estate plan can eliminate every problem, but thoughtful planning can prevent many of the disputes that eventually bring families into probate court.

This is probably the most common mistake we see. People have understandable reasons for postponing a will: “I’m not wealthy.” “My spouse will get everything.” “My children all get along.” Or simply, “I’ll get around to it someday.”

If you die without a valid will, however, Texas law determines who receives your probate property. Sometimes the law produces substantially the result you would have wanted. Sometimes it does not.

One of the biggest surprises involves blended families. A person may assume that a surviving spouse automatically receives the family home. But the result can depend on whether the home is community or separate property and whether the deceased spouse has children or other descendants from another relationship. The surviving spouse may have important homestead rights without owning the entire property.

The most common example involves a couple where one spouse (let’s say the husband) has children from a prior marriage.  If the husband died and the couple had a house obtained during marriage, then without a will the wife owns her one-half share, but his children own his half.  When the wife decides to sell possibly years later, she is in for a rude surprise.  Or perhaps she lives there for the rest of her life, and then when her children try to sell the house, they discover that they own the house with his children, whom they may not have seen for years.

We have seen families discover years after the first spouse died that the surviving spouse did not own all of the house everyone thought he or she owned. By then, the surviving spouse may also have died, the children may have lost contact with one another, and a simple estate-planning problem has become a title and heirship problem involving two generations.

No one intended that result. No one was trying to create a lawsuit. But the absence of a properly prepared will—and sometimes other planning—can leave Texas law to make decisions the family assumed had already been made.

A Common Misconception: “If I do not have a will, everything automatically goes to my spouse.” Sometimes that is substantially true. Sometimes it is not. The answer depends on the family and the property involved.

A good will is extremely important, but it is only part of an estate plan. A will does not necessarily determine who receives every asset you own.

Life insurance, retirement plans, IRAs, payable-on-death accounts, transfer-on-death accounts, and property held under certain survivorship arrangements may pass according to beneficiary designations or account agreements rather than under the will.

That creates a problem when the documents point in different directions. A person may carefully sign a new will leaving an estate equally to three children but forget that an old retirement-account designation still names only one child—or even a former spouse or someone who has died.

The will may say exactly what the person wanted, yet it may not control the asset that represents a large part of the estate. Good planning therefore requires looking at the whole picture rather than treating the will as a stand-alone document.

Texas Probate Tip: Whenever you review your will, review your beneficiary designations and survivorship arrangements at the same time. The goal is for the entire plan to work together.

One of the questions we frequently ask is, “When was your will prepared?” A client may proudly answer, “About thirty years ago.” That is better than never having made a will, but it often raises another question: does that will still accomplish what the client wants today?

During thirty years, people marry and divorce. Children and grandchildren are born. Beneficiaries die. Executors move away or become unable to serve. Businesses are started or sold. Houses are bought and sold. Retirement accounts grow. Relationships change.

An old will is not automatically invalid simply because it is old. The problem is that it may faithfully carry out decisions you made decades ago rather than the decisions you would make today.

We have encountered estate plans naming people who died years earlier, plans prepared before a later marriage, and plans that no longer fit the client's property or family. These problems are usually much easier to correct while the person who made the plan is alive and able to explain what he or she wants.

Suggestion: Pull out your estate documents every few years and after a major life event. Ask a simple question: “If I died tomorrow, would these documents still do what I want?”

This may be the most understandable mistake on the list. Parents know their children. They love them, trust them, and often believe that if anything is unclear, the children will sit down together and reach a sensible agreement.

Sometimes they do. But probate disputes are rarely created in ideal circumstances. A parent has died. People are grieving. Old family tensions can reappear. One child may have provided years of care while another lived hundreds of miles away. Family members may remember conversations differently. A second spouse and children from a prior marriage may each believe they are protecting what the deceased person intended.

We have found that many probate fights do not begin because someone set out to be dishonest. They begin because two people sincerely believe different things. One remembers Dad saying the truck was his. Another remembers Dad saying everything would be divided equally. One child believes Mom intended to reimburse her for years of caregiving. Another sees the same payment as an improper gift.

The problem becomes much harder when the estate plan itself is silent. Courts can interpret Wills and apply Texas law, but they cannot ask the person who died what he or she really meant.

If you want one child to receive a particular piece of property, say so clearly. If you intentionally want to treat children differently, make that decision clearly and with appropriate legal advice. If you expect someone to be reimbursed for money advanced or services provided, document it. Clarity may not prevent every disagreement, but ambiguity invites one.

Why This Matters: “My children know what I want” is not the same thing as putting those wishes into an effective estate plan. Memories differ, circumstances change, and oral understandings can be very difficult to prove after death.

A technically excellent estate plan can still create unnecessary difficulty if no one knows it exists or where to find it.

Families sometimes spend days searching desks, filing cabinets, safe-deposit boxes, computers, and old correspondence for the original will. They may know that a will was signed but have no idea which lawyer prepared it. They may not know where the deceased person banked, whether there was life insurance, who handled investments, or how to locate important deeds and tax records.

The original will is particularly important. A copy can sometimes be probated in Texas when the original cannot be produced, but doing so may require additional proof and can create issues that would never have arisen if the original had simply been safeguarded and its location known.

Preparation does not require giving your children a complete financial report every year. It does mean making sure the appropriate person can find the information that will be needed. At a minimum, someone you trust should know where the original estate-planning documents are kept and how to locate the basic financial and property records.

It is also helpful to think about practical matters that begin immediately after death. Who can secure the house? Who knows about pets or livestock? Is there a business that must continue operating? Are there recurring obligations that someone needs to identify? Those questions may sound mundane compared with drafting a will, but in the first days after a death they can become very important.

Finally, remember that a power of attorney is primarily a lifetime planning document. Families sometimes assume that the person holding a durable power of attorney can simply continue acting after death. Generally, the agent's authority ends at death. The transition from lifetime planning to estate administration is one reason the family should know whom to contact and where the important documents are.

A Simple Suggestion: Create a short “where to find things” list. It does not need account balances or passwords. It can simply identify the location of the original will, financial records, insurance information, deeds, tax returns, and the names of the professionals who can help your family.

A Little Planning Can Prevent a Much Bigger Problem

Most of the mistakes discussed in this article are not dramatic. That is precisely why they are so common. Making a will gets postponed. Beneficiary designations are forgotten. An old estate plan sits in a drawer. Parents assume the children understand what they want. No one tells the family where the original documents are located.

Unfortunately, small planning mistakes can become large probate problems after the one person who could easily correct them is gone.

We have seen the consequences: families discovering unexpected co-owners of real estate, old beneficiary designations controlling valuable accounts, missing original wills, children disagreeing over conversations no one can verify, and estates becoming more complicated because basic information cannot be found.

The good news is that most of these problems are preventable. You do not need to predict every possible future event. You need a current plan, documents that work together, and enough organization that the people who will eventually handle your affairs know where to begin.

The next stage presents a different set of risks. Even a well-planned estate can become unnecessarily complicated if family members act too quickly after a death, continue using a power of attorney, distribute property before authority is established, fail to keep records, or stop communicating with beneficiaries. Those issues are the subject of our companion article, “The Five Biggest Probate Mistakes Families Make After Someone Dies.”

Questions to Ask Yourself

• Do I have a current will that still reflects what I want?
  
  
• Have I reviewed my beneficiary designations and survivorship arrangements recently?
  
  
• Has my family situation or financial situation changed since my estate plan was prepared?
  
  
• Am I relying on my family to remember or honor instructions that are not in writing?
  
  
• Does someone I trust know where to find my original will and important records?

This article provides general information about Texas probate and estate planning and is not legal advice for any particular situation. The result in an individual estate depends on the family relationships, the character and ownership of the property, the documents involved, and other facts.