Why are wills important to have?
1. If you die without a legally valid will state law dictates that the court system must use very strict rules to decide who gets which parts of your estate. Wills help prevent property from getting distributed in completely different ways than people would have wanted. If you do not have a will this may cause extreme financial and emotional pain to some of the people in your life who you may have wanted to help the most. Likewise, you might unintentionally give valuable assets to people who you believe do not need and/or do not deserve any of your resources.
2. If you have minor children and die without a will or some other appropriately created document, the court will appoint a guardian based on statutory guidelines which means your children may go to someone you would not have chosen. If both parents die then the court is required to appoint someone to raise your children using guidelines required by law. Depending on the dynamics of your extended family, this may lead to your children being raised by someone you never would have chosen for such an incredibly important task, one that will greatly affect your children’s lives.
3. Dying without a will may tie up assets for an undetermined amount of time, sometimes years in worst case scenarios, causing financial and emotional stress for the family and friends you have left behind. Often there will need to be court proceedings to determine who the heirs are. An administrator may also have to be appointed by the court, and this administrator may be required to post a bond to insure that the duties are carried out appropriately. Likewise, the judge may have to require the administrator be supervised closely by the court.
4. If you die without a will your estate and family members may potentially rack up substantial legal fees and court costs that could have easily been avoided. Again, if you die without a proper will sometimes heirship proceedings in court are needed just to determine who the heirs are. Then sometimes there are still drawn-out legal battles between the heirs in settling the estate. This would all be a complete waste of money that your loved ones would certainly prefer to use for better and more helpful things.
What exactly are wills?
Wills are legal document that spell out who will inherit people’s property when they die. The people who inherit your property are called beneficiaries. In this same document you can name an executor who is the person you trust to manage the distribution of your property to the beneficiaries. The executor can also be one of the beneficiaries if you like. Likewise, if you have any minor children, you can appoint a guardian to take care of them.
Is a will all that I need to be prepared?
There are four other estate planning documents that every adult in Texas should have. Please see Estate Planning Basics for more details.
What are the requirements for formal wills in Texas?
A typewritten, formal will is the most common form and is more likely to carry out the testator’s intent. A typewritten will is actually not required to be notarized in Texas to be valid, but it must meet these requirements:
- In writing.
- Signed by the testator or another person at his or her discretion and in his or her presence.
- Attested (verified) by at least two credible witnesses over the age of 14.
- Signed by the witnesses in the presence of the testator.
However, it usually includes a self-proving affidavit which is signed by the person making the will and the two witnesses and then notarized. This prevents the need to have the witnesses testify at court during the probate process and thereby saves time and money.
Who can make a will?
The person making the document, known as the testator, must meet the following requirements:
- The testator must have legal capacity to create a will in Texas. This means that the testator must be at least one of these three things: a) 18 years old or older, b) married or previously married, or c) be currently serving in the armed forces.
- The testator must also have testamentary capacity which means he or she must be of sound mind at the time of executing the will.
- The testator must show testamentary intent which means that at the time the will was created the testator intended to bequeath or pass down property upon his or her death.
- The testator must not have been forced or deceived by someone else into creating the will.
Are handwritten wills legally valid?
Handwritten wills, also known as a holographic wills, can be valid if they follow certain rules, but they are not nearly as good as a will written by a professional estate planning attorney. A handwritten will must be 100% in the testator’s handwriting and also actually signed by the testator in order to be valid. It does not need to be witnessed. Although this may sound easy, unless the testator is someone who really understands estate planning laws in Texas it is very easy for major complications to arise. For example most testators do not fully understand the complexities of Texas laws for separate vs. community property, and this alone could cause property to be distributed in ways very different from what the testator was trying to accomplish. Or there might be unclear language requiring the court to interpret ambiguous terms which may lead to expensive legal proceedings. Or it may lack sufficient language allowing the executor or executrix to serve without court supervision and without the need to post bond, causing unnecessary delays and expenses. In general a handwritten one is also more likely to be declared invalid by the court which means that the testator’s estate would be distributed according to strict rules as opposed to how the testator would have actually preferred.
Can I make an oral will?
In Texas any oral wills created on September 1, 2007 or later are not legally valid.
What is considered part of my estate?
Per the IRS, your estate consists of the fair market value of everything you own at the time of your death minus your debts. These items include such things as bank accounts, stocks and bonds, real estate, life insurance policies, business interests and personal property like cars, jewelry, coin collections and artwork.
Do all of my assets get distributed by the terms of my will?
Usually not all of your assets will pass through your will. See Non-Probate Assets Do NOT Pass Through Your Will And Could Cause Big Problems.
Do I have to worry about an estate tax?
The US Congress passed legislation on January 1, 2013 allowing every person the ability to leave or give away up to $5.25 million ($10.5 million for a couple) without owing any estate tax. This exemption amount is set to be indexed to inflation each year in the future. [For 2017 the exemption is $5.49 million per person, $10.98 million for a couple.] Because of this estate tax exclusion, only a fraction of the top 1% of the richest people in the country will pay an estate tax.
Does Texas have an inheritance tax?
No, the State of Texas does not have an inheritance tax.
Why should I use you for drafting my estate planning documents?
Please see my Home Page.
How do I work with you? How can your law firm create a will and other estate planning documents for me?
Please see How Do I Work With You?