Unless you want Texas statutes determining your estate plan for you, yes! Without a Will in place, the state’s rules of intestate succession will determine how your property passes, and to whom, and the process of administering an intestate estate (an estate where there is no Will) is typically longer and more complicated than the administration of a testate estate (where there is aWill). Even if you believe you "don’t have much property" and you’re single and young, a Will is highly recommended so you can make the probate process simpler for any friends and family and so you, not the state, can determine precisely how your assets will pass after your death.
Probate is, very simply, the process in court for determining the existence and validity of a Will. The probate process typically involves the named Executor (or Executors) under a Will proving to the court that the Will in question is valid and that the estate needs administration, so that property can be distributed to the beneficiaries. The probate process can be uncontested or, if an interested party believes the Will is somehow invalid, probate can become contested and litigated. The process of administration itself depends heavily on the powers and independence granted to any Executor under the Will.
In a way, it is easier to understand what a Will controls by first focusing on what a Will does not control. With regards to Texas probate, there are two major classifications or property: probate property and nonprobate property. Nonprobate property consists of things that are controlled by contract, agreement, or beneficiary designation(s). Items like life insurance policies, bank accounts with rights of survivorship, and retirement accounts are usual examples of nonprobate property, which a Will does not control, as the manner in which the property passes after your death is written into the contract and/or beneficiary designation. A Will, alternatively, control probate property, which is “everything else” that is not governed by contract, agreement, beneficiary designation, or some other outside agreement. In the vast majority of estate, the Will controls personal property (cash, clothing, jewelry, furniture, etc.), titled property such as cars and most real estate interests, and any typical nonprobate items that, for some reason, lack any beneficiary designation or instructions and get swept up by the Will. When drafting an estate plan, it is important to consider what property of yours would be controlled by a Will and what is nonprobate property that passes per the terms of a separate instrument. Keep in mind that property held in a Trust can help avoid probate because Trust property is governed by the Trust instrument and, therefore, is nonprobate property.
While the very term asset protection might conjure up images of mysterious offshore accounts and billionaires smoking cigars while discussing where to move their gold stores, the actual intricacies of asset protection are neither so enigmatic nor limited to only the ultra-rich. Asset protection is simply an umbrella term used to describe the various legal strategies that can protect your assets from creditors, potentially lower your tax liabilities, and provide security for assets to grow and be controlled for future generations while avoiding costly probate proceedings. If you are thinking about creating an estate plan, you are very likely already considering some form of asset protection already– such as a simple trust to hold property for the benefit of your children until they come of age. In short, some form of asset protection is indeed for everyone, though the scale and complexity of such protection varies wildly depending on personal preference and, of course, net worth and the extent of the property you own.
NO! Some residential evictions remain possible, even with back-and-forth nationwide moratorium announcements from the CDC and individual county moratoriums within Texas. It is very important to speak with an attorney to know your rights as a landlord or tenant, in the event that you are being evicted (or trying to evict a tenant) for failure to pay rent. Evictions for tenants who are holding over a lease beyond termination are generally permissible. Zapalac Law Firm can help you determine your rights as either a tenant or landlord here, which are especially important to know in such uncertain times.
While Texas is a community property state and it is often assumed that a divorce court would divide communal assets 50/50 amongst the parties, Texas law ultimately allows the court to divide assets in a manner that the court deems “just and right.” What, precisely, would a court determine is a “just and right” division? Who knows! It’s an equitable standard and is very dependent on the judge analyzing all factors in the divorce, such as fault of the parties (if fault is brought), educational and earning power disparity between the spouses, needs of the children, etc. While it would be nice to rely on a wise judge to divide things in a perfect and fair manner, Zapalac Law Firm believes it is better if soon-to-be newlyweds discuss a prenup openly and maturely, deciding on how they want to divide and classify all assets in case divorce does occur in the future, instead of leaving it all up to a judge. A well-drafted prenuptial (or even a postnuptial agreement) could help avoid the unfortunate mudslinging and bitterness that often comes with divorce, and allows the parties to determine, in a clear-headed manner while relations are still good, what they think is fair in case they do separate in the future.