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by Vicki Ratliff

Last week, I received a call from Carol Brady. She was telling me that she and Mike had moved to Texas 30 years ago, moving into their dream home that they bought together. She went on to tell me that Mike had passed away 10 years ago. Fortunately, Mike left everything to Carol in his Will. Unfortunately, Carol never took the necessary steps to probate that Will, and now that she is looking to sell “her” house, she is learning that some of the proceeds will be going to Mike’s children under the Texas laws of intestate succession, which is throwing a kink into Carol’s long term care plans. As a matter of fact, ½ of the proceeds will go to Mike’s descendants because Mike had children that were not Carol’s children, you know, Greg, Peter, and Bobby.

This is not the first time I have heard this story. There are a lot of rumors and assumptions that go on after a death. Here are a few:

1. Assumption: Since we were married, all of our assets are community property and everything automatically goes to the surviving spouse. Truth: Just because you are married does not make everything community property. Plus, there are no automatics. Titles to property still have to be addressed. And finally, if your spouse had children that aren’t yours and didn’t leave a Will, this is just flat wrong.

2. Assumption: Since my spouse left a Will, I don’t have to go to probate. Truth: The purpose of a Will is not to avoid probate but to make probate easier if needed, among other things. Plus, if you never probate the Will and go through proper channels, no one else out there knows that the Will even exists.

3. Assumption: I have my spouse’s power of attorney. I don’t need to probate the Will. Truth: A power of attorney dies when the person who made it dies. So, that’s not going to work.

4. Assumption: I’ll probate the Will when I need to. Truth: You only have 4 years from the date of death to probate a Will in Texas, with very rare exceptions.

How can you avoid this situation? When you suffer the loss of a loved one, speak with a probate attorney to see if any steps are needed to protect your inheritance. Don’t make assumptions. Get the facts. Just ask!

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