Five things Texas families believe about wills and inheritance that are not true

Two of the most common beliefs are both wrong

No on both counts. A will does not avoid probate in Texas; it is the document the probate court follows, although it can make probate much simpler. And a surviving spouse does not automatically inherit everything when there is no will: under Texas law, the result depends on whether property is community or separate and whether the deceased had children from another relationship. Those two misunderstandings, and three others, account for a large share of the surprises families face after a death.

I hear these beliefs from smart, careful people every week. They are not foolish; they are simply what most people assume. This guide takes them one at a time and explains what Texas law actually does. It is general information, not advice about your situation, which a licensed Texas attorney should hear in full.

Myth one: "If I have a will, my family avoids probate"

A will is a set of instructions to the probate court. To transfer property titled in your name alone, the will generally has to be admitted to probate, the court process TexasLawHelp.org describes as the procedure in which a judge determines whether a will is valid. Having a will does not skip that step.

What a good will does is make probate shorter, cheaper and less supervised. It can name an independent executor, waive bond and include a self-proving affidavit so witnesses do not have to testify. Compared with an estate that has no will, where the court must first determine the heirs, that is a large difference. If avoiding probate entirely matters to you, the tools are different: beneficiary designations, a transfer on death deed or a funded living trust. I compare them in will or living trust in Texas.

Myth two: "My spouse will get everything anyway"

This is the belief that most often hurts blended families. Texas is a community-property state, and when a married person dies without a will, the intestacy rules treat community and separate property differently.

For community property, Texas Estates Code Section 201.003 gives the deceased spouse's share to the surviving spouse only if there are no children or descendants, or if all of them are also the surviving spouse's children. If the deceased had a child from another relationship, the deceased's half of the community property passes to the deceased's children instead. The surviving spouse keeps their own half, but may end up co-owning the house with stepchildren.

Separate property, generally what one spouse owned before marriage or received by gift or inheritance, follows Section 201.002. When the deceased left children, the surviving spouse takes one-third of the separate personal property and the children take two-thirds. For separate real estate, the spouse receives only a life estate in one-third, and the children take the rest. Many surviving spouses learn this for the first time in a probate courtroom.

• Community property goes entirely to the spouse only when every child is also the spouse's child
• A child from another relationship takes the deceased's half of the community property
• Separate personal property splits one-third to the spouse, two-thirds to the children
• Separate real estate leaves the spouse with a life estate in one-third

Myth three: "My will decides who gets everything I own"

A will controls only the property that passes through your estate. TexasLawHelp.org notes that assets such as insurance, retirement funds and jointly held property pass outside probate. Those go to whoever is named on the beneficiary form or holds the survivorship right, regardless of what your will says.

That is how a retirement account ends up with a former spouse, or a life insurance policy goes to a parent who has died, sending the money back into the estate. It is also how one child named on an account can receive far more than a will that divides everything equally intended. Your beneficiary forms are as much a part of your estate plan as the will. If you are building a family plan that includes life insurance, a financial advisor such as the one who wrote this guide on protection and savings for working families can help you think through who should be named.

Myth four: "Texas will take a big share in inheritance tax"

Texas does not have a state inheritance tax. According to the Texas Comptroller, the Legislature repealed the inheritance tax effective September 1, 2015. Heirs in Texas do not pay a state tax simply for receiving an inheritance.

The federal estate tax still exists, but it applies only to estates above a high threshold set by Congress, which most families never approach. Income taxes can still matter in particular cases, for example when an heir withdraws money from an inherited retirement account. Those are questions for a CPA alongside your attorney. For the great majority of the families I meet, the real costs of a poorly planned estate are court time, delay and family conflict, not tax.

Myth five: "Estate planning is for wealthy people"

The families who most need a plan are often the ones with the least room for error. A young couple with a mortgage and two small children needs a will to name a guardian; without one, a court decides who raises the children. A single parent needs someone named to manage a child's inheritance; without that, the money is managed under court oversight and released at 18.

Every adult also needs someone authorized to act if they become unable to manage their own affairs. That has nothing to do with wealth. A durable power of attorney, a medical power of attorney and a directive to physicians cost far less than the court process that can follow without them. The size of the estate changes the plan's details, not whether a plan is worth having.

Two more I hear almost as often

"I'll just put my child's name on the deed." Adding a child as a co-owner gives that child an ownership interest now, which may expose the house to the child's creditors or divorce and can create tax and fairness problems among siblings. Texas offers a cleaner tool for passing a house at death, the transfer on death deed, which I explain in a transfer on death deed for your Texas house.

"Once it's signed, I'm finished." A will written before a divorce, a remarriage or the birth of a grandchild may no longer say what you mean. Texas law corrects a few situations automatically, such as provisions for a former spouse after divorce, but most changes require you to act. My guide to the life changes that mean a will is out of date walks through the review.

Where these beliefs come from

Most of them are true somewhere. Some states give the surviving spouse more under their default rules; some states make probate notoriously slow; many families have seen an inheritance pass simply because everything happened to have a beneficiary named. People carry those stories with them, especially when they move to Texas from elsewhere.

Others come from advice that was right for someone else. A friend whose estate went smoothly may have had everything in beneficiary accounts. A relative who swears by living trusts may have owned property in three states. A coworker whose spouse inherited everything may have had no children from a prior marriage. Each story is accurate for that family, and quietly misleading for yours if the facts differ in any way.

The fix is not to memorize the law. It is to look at your own family, your own property and how each asset is titled, and to ask what would actually happen under Texas rules. That review is usually less work than people expect, and it is far easier now than after a death.

A one-afternoon reality check

You can test your own plan against these myths without any legal training. Set aside an afternoon, pull together the documents below and answer one question for each asset: if I died tomorrow, who would actually receive this, and through what route? Write the answer next to each item.

Most families who do this in the Dallas area find at least one asset that would go somewhere they did not intend, or a document that names someone who can no longer serve. That discovery is exactly the point. It turns a vague worry into a short, specific list of fixes.

• Your will and any trust, or a note that you have none
• The deed to your house, to see how it is titled
• Beneficiary statements for every retirement account and life insurance policy
• Bank and brokerage statements showing any payable-on-death or joint owners
• Your financial and medical powers of attorney
• Any prenuptial agreement or divorce decree

Checking your own plan with me

I practice alone in the Lake Highlands area of Dallas, on Plano Road, and you talk directly with me by phone or at the office. Bring your existing documents, a list of what you own and how it is titled, and recent beneficiary statements. I will tell you what Texas law would do today, where your documents and accounts point in different directions, and what I would recommend, with the cost.

If you have never made a plan, we start from scratch; if you have one, we start from what you have. In either case, this guide is general information. For decisions about your own family, talk to a licensed Texas attorney who knows the whole picture.

Questions people ask me