At Youngblood Law, PLLC, we encourage everyone to think seriously about getting a will and other pre-need documents in place as soon as possible. Everyone believes they will get around to getting a will someday, sadly for many, the task is postponed until it is too late. Misunderstandings and misconceptions about who needs a will and when to get a will abound. For that reason, we have assembled an assortment of information to assist you in learning more about wills in Texas.
Wills and Estate Planning Blogs
Most people assume that their spouse automatically just gets everything when they die. This seems reasonable enough, but apparently not to the legislature that produced the Texas Estates Code. The Estates Code only gives your spouse all of your belongings automatically when there are no children, or all of the children you have are from…
Many people mistakenly believe that a last will and testament document is all they will need. Of course, we at Youngblood Law, PLLC, do recommend having an up-to-date will, but we recommend executing several other documents as well. The main risk to having only a will is simple. If a person has only a will…
Frequently Asked Questions About Wills and Estate Planning
What Are The Common Terms Used In Wills And Other Pre-need Documents?
Administrator/Administratrix: a person who administers an estate when there is no will. The Administrator is typically the person who files with the court to establish heirship and to distribute the estate among the heirs according to the Estates Code. In modern style, a male or female can be the Administrator, but legal custom is to refer to a female as an Administratrix.
Advance Directive to Physician: Also known as a Living Will, this document allows people to make the decision to be kept on life support and receive treatment, or to be removed from life support and treatment and allowed to die as peacefully and painlessly as possible under two specific sets of fact.
Agent: A person upon whom powers are bestowed by a principal in a Power of Attorney. The agent has a duty to act for the benefit of the principal.
Beneficiary: A party who receive a benefit from a will. This can be a person, or an entity like a charity or church.
Devisee: A beneficiary who receives some real estate.
Executor/Executrix: This is the person named in the will who executes the will and distributes the estate. This is usually the person who will file an application for probate of the will and transfer all of the property in the estate according to the terms of the will. There are typically one or two back-up executors named in the will in case, the first executor cannot carry out the duty of executing the estate. In modern style, a male or female can be the Executor, but legal custom is to refer to a female as a Executrix.
Guardian: A person who is appointed to care for a ward. The Guardian may be the guardian of the person or the guardian of the estate of the ward. It is also possible that guardian does both duties. In connection with a will, a guardian is usually nominated by the testator to care for minor children, and the guardian will typically manage both the person and estate of the children.
Heir: An heir is someone who COULD take from the estate of a deceased person. Generally we think of heirs as our children and grandchildren, but the Texas Estates Code also allows for spouses, parents, grandparents, siblings, aunts and uncles, etc. A person’s heirs at law are officially established at the moment of death, so technically, no one is an heir until the person dies. Of course if a person dies with a will, then the beneficiaries will take a share of his or her estate regardless of who could be heirs.
Medical Power of Attorney: A medical power of attorney allows the Principal to designate an Agent to make medical decisions on behalf of the Principal if the Principal is incapacitated. Decisions that can be made include treatment regimen, types of care, providers of the care, and more. The Agent cannot make decisions that conflict with the Principal’s Advance Directive To Physician (Living Will).
Notary: A person with a special commission to formally sign documents to assure the authenticity of the document. Most lawyers who draft wills have at least one notary in their office for notarizing wills, affidavits, and pre-need documents.
Power Of Attorney: The Texas Estates Code defines the powers that are available in a standard power of attorney. This document allows the Principal to bestow specific powers upon an Agent. All of the powers that can be bestowed in this document are business related and include authorization to conduct banking, real estate transactions, and much more.
Principal: A person who bestows powers on another person with a Power of Attorney.
Residue: The portion of the probate assets that are given to beneficiaries in a will after all of the specific gifts have been made. In other words, after the specific gifts are made, the residue of the estate is what remains to be distributed.
Specific Gifts: These are specific, named items that are given to specific beneficiaries, i.e. the testatrix leaving her 1965 Ford Mustang to her beloved niece, Sally is a specific gift.
Testator/Testatrix: This is the person who made the will. In modern style, a male or female can be the Testator, but legal custom is to refer to a female as a Testatrix
Trustee: A trust created by or in conjunction with a will is managed by a trustee
Ward: A person on behalf of which a guardian owes a duty.
Witness: A witness in Texas is someone fourteen years old or older who can testify about the validity of the will. There is nothing in the law that prevents a witness from being a beneficiary in the same will, but generally, the court is suspicious of a witness who also gets a share of the estate.
Does my spouse get everything if I die?
Not necessarily. There are circumstances outlined in the Texas Estates Code that distribute some property to other surviving family members if a person dies with no will. For a discussion on this topic see here.
When should a will be revised?
Anytime there is a major life event, you should consult your attorney to make sure your will still does what you want it to do, but if any of the following events take place, then a revision could be required: marriage or remarriage of the testator, divorce of the testator, a new child is born or adopted, an adult child passes away, purchase or sale of real estate, any major purchase like a new sports car, airplane, boat, race horse, or expensive art.
Additionally, if your will is a fill-in-the-blank type will purchased from a legal document production company, we recommend having it reviewed by an attorney right away. Fill-in-the-blank forms are viewed with skepticism by the courts to begin with, and many of these forms do not meet Wills Act formality. Many testators do not fill out these forms correctly, and many problems for the surviving family are created at worst, and at best, the Will will be thrown out by the court as if no will was ever made. For more discussion of why we do not recommend DIY will kits, see here.
Do I need a will if I am common law married?
A common law spouse will inherit just as a formally married spouse would. However, proving a common law marriage in Texas is not easy. The purported spouse would first have to convince the judge that an informal marriage existed. Meanwhile, the deceased’s surviving family will likely be trying to prove to the judge that only a dating relationship existed between the deceased and the purported spouse. The easiest way to solve this problem and prevent this legal battle is to put your common law spouse into your will. Then it doesn’t matter if there was a marriage or not; your loved one still inherits.
Should I list all of my children in my will?
Generally all children should be listed. Of course, a class of people can be created in a will for a testator who may not be done having children. In this case the will would say something like “…the rest of my estate shall be divided between my then living children in equal shares.” This type of wording creates a class of children, so when the testator dies, all of the children that are alive at that time would take whether there are twelve kids or only one.
What if I want to write a child out of my will?
It is better to name the child in the will and give the child nothing than to leave the child out. Texas presumes that a testator would mean to leave something to all of the children, so if a child isn’t listed in the will at all, the court will still give the child a share. If the intent is to cut a child out of the estate, the will should say so thus preventing a legal problem for the family.
Do I need to appoint a trustee for my minor children?
Yes. Minor children take their share of the estate in trust. Because a minor child cannot transact most adult business like buying or selling real estate and banking, and because children are often not responsible enough to manage an estate, the testator should name a trustee who will accept the estate on behalf of the minor children and manage it until the children are old enough to manage it for themselves. Like an executor, it is best practice to have a back-up trustee or two in case the named trustee cannot carry out this duty.
Should I appoint a guardian for the children?
Yes. Testators typically name the other parent of their children as guardian. But back-up guardians should be appointed as well in case the other parent does not survive the testator. If no guardian is named, and no parent survives the minor children, then the court will have to pick someone to charge with the duty of raising the children.
Do step-children count as “children” in my will?
No. Texas presumes a step child will inherit from both of his or her biological parents, so there is no presumption that the child should inherit from a step-parent. If there is a step-child you want to inherit from you, that child must be named in your will and given a share of the estate.
What kinds of property can pass through a will?
Most property can pass through a will, but there are several non-probate asset classes that do not pass through a will.
Probate Property: Most property that is owned by the testator can be passed through a will including real estate, money, bank accounts, cars, toasters, dogs, cattle, any much more.
Non-Probate Property: If an asset has a contractual beneficiary, it is a non-probate asset. Examples include: Pensions, 401(k) plans, life insurance, stock options, business entities governed by an operating agreement, etc. Non-probate assets will have a named beneficiary in the controlling contractual agreement. The account will pay according to the contractual terms to the named beneficiary regardless of what the will says. Caveat: If the named beneficiary of a non-probate asset is your estate, then the proceeds of the property would pass through the will to the heirs
How do Pay On Death accounts affect my will?
Like non-probate assets, P.O.D. accounts will pass to the named beneficiary in the contract for the account. A Transfer On Death deed does the same thing for real estate. A P.O.D. account, or a Transfer on Death deed convert probate property into non-probate property that will pass by contract rather than by will.
What happens if there is debt attached to a gift in my will?
The debt goes with the item unless the will directs the executor to pay off the debt from the estate. For example, if a will leaves a specific car to an heir, the heir will be responsible for paying the remainder of the note on the car. Remember that taxes count as debt, so it is possible to leave an heir a gift that the heir loses due to unpaid back taxes. Unless the will directs the executor to pay off the debts before distributing the gifts, the debts follow the gifts.
What makes a will valid?
To be valid, a will must meet the formality of the Texas Wills Act statutes.
First, the testator must have legal capacity to execute a will. This means the testator must generally be eighteen years old unless certain other conditions are met.
Second, the testator must have testamentary capacity. This means he or she must understand what a will is, what it does, what property is being conveyed, who is getting the property, and how these elements work together to dispose of the estate.
Third, the testator must have testamentary intent. This means that the testator understands that the will is intended to dispose of the estate upon the death of the testator.
Finally, the written or printed will must be signed and witnessed by proper witnesses. The witnesses must be at least fourteen years old and be able to testify as to what they saw when they signed. The testator usually signs the will, but in the case where the testator meets all of the formalities but cannot personally sign the document, a third party can sign the document on behalf of and at the direction of the testator. The witnesses must witness the testator or the testator’s agent sign the document.
What is a holographic will?
Texas allows the option of a will to be drafted entirely in the handwriting of the testator. This is called a holographic will, and it does not have to be witnessed, but the other formalities must still be met. Generally, in a holographic will, the intent and capacity of the testator are inferred by the writing itself. Note that a holographic will need not be written on paper. A Texas court found a will was valid when the testator wrote “all to wife” and signed it with his finger in his own blood on the fender of a tractor.
What is a Self-Proving Affidavit?
The law requires the witnesses of a will appear in court to testify as to the validity and authenticity of a will. To avoid this huge headache, the Estates Code allows for the testator and witnesses to attest to the validity and authenticity of the will by signing an affidavit before a notary. When the probate court sees the affidavit, the court dispenses with the need for witness testimony and presumes the will is valid. The Self-proving affidavit is signed at the time the will is executed.
What if I have a fill-in-the-blank will I got online?
These wills can be valid if properly witnessed and signed. A self-proving affidavit should also be attached. For more on the risks of fill- in-the-blank will kits, see here.
Can I just add or remove content from my will later?
No. Texas requires any revision to the will be made with the same formality as when the will was originally made. While it would be convenient to add a beneficiary to your will by writing his or her name into the margin, no Texas court will even acknowledge subsequent writing in the will. Likewise, if a testator chooses to strike a provision in the will, the courts do not acknowledge any strikethroughs in the will. The court will probate the will as originally drafted whenever possible ignoring any subsequent writing or strikethroughs. To add or remove content in the will, a formal revision is required. This can be in the form of a codicil or a new will entirely.
What is a Codicil?
A codicil is a formal addendum to a will. It can be added to a will at any time by the testator, but it requires all Wills Act formalities.
Can I un-staple my will to make copies?
No. If the validity of a will is ever brought into question, the court will look to see if the will was ever un-stapled. If the will was unstapled, the court presumes it is invalid because the court has no way to tell if the original will, as originally drafted, is before the court or if pages were substituted or removed. Do make copies. Do not un-staple the original will to do so.
How can I revoke my will?
In Texas, a will can be revoked by completely and intentionally destroying the original. For example, if a testator intentionally sets the will on fire and it burns up, it is revoked. Of course there are problems with this approach. If copies of the will are available to family members and no one saw the original will destroyed, then the court may assume it was lost by accident and probate the will based on a copy. The best way to revoke a will is to have a new will drafted that specifically revokes all previous wills. That will fix the problems of copies and originals of all previous wills leaving the currently dated will as the only valid will.
What is a Disposition of Remains document, and can it be included in my will?
The disposition of remains is a document that tells your surviving family how you wish for your remains to be disposed of and under what conditions. For example, this document tells your family if you wish to be buried, cremated, donated to science, or some other disposition, and whether you want a funeral or a memorial service. It is important to note that your family may or may not adhere to your wishes, and at any rate, the funeral will probably be over before your will is reviewed by your family. The desired disposition of remains can be a stand-alone document or it can be included in the will.
What happens to my will if I am getting a divorce?
In Texas a person is either married, or not. There is no such thing as a legal separation. If a person would not want his or her spouse to inherit the estate before, after, or during a divorce, then the person should update the existing will to write the spouse out, or if there is no will, then a will should be executed to disinherit the spouse. See here for more information.
Do I need a Will?
Very likely. We hate to say EVERYONE needs a will, but we do believe the vast majority of our friends and neighbors do need a will. To see if you qualify for a will, see here.
Is a Will the only document I really need?
No. Briefly, a Will distributes your estate to the beneficiaries you choose. A Will only goes into effect when a testator dies. Other documents are required to handle the testator’s financial business, medical decisions, end of life care, and other considerations when in case the testator becomes incapacitated. Many people go through a length of time when they cannot run their normal errands due to illness or old age, or become suddenly incapacitated due to injury or disease prior to passing away. The period of time between normal self-sufficient life and death is when the supporting pre-need documents come into play. For a discussion of what other documents you may need, click here.
Does a will expire?
? No. A will does not expire. It will last indefinitely until it is used in court to probate an estate, or until it is revoked by the testator. The lifespan of a will can be a blessing because it does not need constant maintenance, and executing a will once in a whole lifetime is often all it takes to protect your family. However, provisions of a will can expire or become irrelevant over time as situations change. This can cause serious damage to your surviving family. See a more robust discussion of whether a will expires here.
Can I write my spouse out of my will?
Yes. In spite of the persistent rumor to the contrary, it is lawful to write your spouse out of your will.
Can my spouse and I execute wills that mirror each other?
Yes. Many couples do this. However, each spouse is free to edit his or her will any time in the future. It should be noted that an attorney who drafted a couple’s wills should not be the attorney who revises one spouse’s will; both spouses are the client of the attorney, and the attorney has a duty to both. Thus, an ethical dilemma arises when one spouse wishes to write the other spouse out. Should the attorney tell the other spouse and share privileged information from this spouse? Or should the lawyer keep this spouse’s secret and breach his duty to the other spouse?