Writing Your Will In Texas: Know the EssentialsAug 16, 2023
This article about writing your will in Texas by League City, Texas estate planning attorney Joy C. McNair is not, and should not be construed as legal advice. Please consult a qualified attorney or contact our office for advice on Texas laws.
A will is a legal document written to ensure your property and assets are distributed how you want after your death.
It may feel morbid to think about writing your last will. Still, most people feel that ensuring that specific individuals receive an inheritance or that your children are taken care of should you pass away is essential.
Even though we know advance planning is important, wills are not right for everyone.
Is a will the right estate planning device for you?
Read more to learn about the Texas Estates Code and a last will and testament in Texas.
Original Will in texas
The Most Important Thing To Know About Your Will In Texas: Probate
When it comes to Texas wills, here are some things to keep in mind when you decide to write your last will and testament.
The most common misunderstanding in estate planning is that people believe they will avoid probate if they have a will.
This is false. Wills are legal documents that are created for probate. In fact, there is a saying that goes, "Where there's a will, there's a probate."
What this means to you is that having a will means that your assets pass through probate. This is because only the court can validate a will and approve the assets to be taken out of the name of the deceased person and transferred into the beneficiary's name.
How Long Does Texas Probate Take?
On average probate in Texas takes a minimum of 6 months for very basic estates and up to 1 year or more for other types of estates depending on the complexity.
This means that in most cases, it will be 1 year or more before your family or other loved ones have full access to and control of your money. Is that really what you want?
Privacy And Probate
Probate is a public process. What this means to you is that anyone can be sitting at their computer, access the public records related to probate, and find out exactly what assets you had, who your heirs are, what they are getting, when they are getting these assets, and their address.
Do you want their privacy sacrificed in this way? If not, a trust may be a better choice.
Wills And Medicaid
Due to the high cost of skilled care in Texas, many people rely on Medicaid to provide support with their cost of care (nursing home).
What most people don't know is that when a person who received nursing home Medicaid passes away, the state wants to be paid back for any amounts paid towards the recipient's cost of care - this is known as the Medicaid Estate Recovery Program (MERP).
In Texas, the state only recovers from assets that pass through probate (probate assets). For this reason, when Medicaid is involved or may become needed, a trust or other probate avoidance tool is a superior option over a will.
Another common issue is that married couples often leave all of their assets to each other in their will. This will cause problems if the surviving spouse is receiving Medicaid or may need to become eligible for Medicaid at some point in the future. In such cases, instead of leaving assets directly to your spouse, a well-drafted estate plan will include a special contingency trust to address this concern.
Wills And Incapacity
A will is effective only after a person dies and the court validates the will. This overlooks the reality that an increasing number of people become incapacitated during their lifetime and are not able to manage their finances or health care.
To address these concerns, it is important for you to have other documents that address incapacity such as financial power of attorney, medical power of attorney, and a living will.
Wills And Non-Probate Assets
There are assets that pass by title (houses, cars, bank accounts, etc.) -- these are known as probate assets. And, there are assets that pass by beneficiary designation (retirement accounts, life insurance, annuities, etc.) -- these are known as non-probate assets. It is important to note that only probate assets are controlled by the will.
Many people mistakenly try to may changes to the beneficiaries of their non-probate assets through their will and this simply won't work. Only a beneficiary designation controls the distribution of a non-probate asset regardless of what the will says.
If you wish to plan for contingencies or don't want the beneficiary to access the full amount of the asset in a lump sum, then a trust is a better choice.
Do I Need a Lawyer to Make a Will in Texas?
Using a competent Texas attorney to write your will is recommended to avoid any confusion when your family reads the will. Many horror stories exist about wills that weren’t written properly and family members that were not given their inheritance because of legal loopholes.
There are websites now that will help you write your own will, but many of these take a one size fits all approach and don't take into consideration the many variables that may impact your life and assets.
You don't know what you don't know, so your safest bet is always to use an estate planning lawyer, especially if you are upper middle class or above or you have variables that involved more complexities such as a blended family, minor children, disabled child, business owner, a high-risk profession, and more.
What Can You Actually Control With Your Texas Will?
If you are married or have entered into certain contracts, state laws may prohibit what property you can legally bequeath.
Prenuptial agreements and certain kinds of trusts could restrict what you can allocate to others after your death.
Community Property In Texas
Community property states are those where, by law, 50 percent of all of your assets acquired during your marriage are shared with your spouse.
Suppose you live in Texas, or another community property state such as Nevada, New Mexico, Arizona, California, Louisiana, Idaho, Wisconsin, or Washington. In that case, half of all your assets that were acquired during your marriage belong to your spouse (exceptions do apply).
Can I exclude my spouse?
Under the Texas Estates Code, a spouse cannot be entirely disinherited through a will. You are free to distribute your half of the community property and any separate property that you own however you would like, but your spouse is entitled to their half of the community property.
If the last will does not name the testator's surviving spouse as a beneficiary, then that spouse is considered disinherited.
Otherwise, under intestacy laws, Texas law provides for an automatic share of the deceased person's probate estate with their spouse.
Texas Law can provide help after death
Texas Will: Last Will and Testament Requirements
Many people don’t know what goes into creating a valid will.
Under Texas law, real and personal property in probate must be administered and distributed according to the instructions set out in the last will of the deceased.
There are several different types of probate processes available in Texas. Which type is available for a particular estate depends on the nature of the assets and what the will says. In most cases, one of the more favorable administration types, Independent Administration, must be specifically stated in the will or agreed to by the beneficiaries.
Likewise, if the provided in the last will or if all parties agree, an executor can begin to manage and distribute assets without needing a bond.
However, if the court requires a bond, it must be obtained before an Order of Probate can be issued. Wills must be clear about who gets what so there are no misunderstandings or objections regarding probate.
Here are a few examples of what should be included, at minimum.
Beneficiaries: Your beneficiaries are those you choose to receive real property or personal property in cash or assets. Many people name their spouse, children, or other family members.
Executor: This person that will carry out what’s written in your will. They will make sure that your beneficiaries receive what you intended for them. You can choose a responsible friend or family member, or, many times; this job falls into the hands of a bank or lawyer. If you choose a friend or family member, determine how much that individual should be paid for their time.
Parental guardian: If you are writing your will while you still have young children, name a person or multiple people to raise your minor children should you pass away. Since this is a major life endeavor for the person or people you name, list a few individuals in case one or two are not in a position to take on this role at the time of your death.
Do I Need to Have My Will Notarized?
A self-proving affidavit is a document used to prove that the testator of a will in Texas has legally declared and signed the will in front of two witnesses.
This affidavit is an alternative to having the witnesses testify in court that they witnessed the signing of the will. It also helps reduce any legal disputes or objections over the will's validity. Self-proving affidavits are typically signed by both the testator and the two witnesses in front of a notary public.
A self-proved will must include both signatures, dates, and an attestation clause that states that all parties have sworn to the accuracy of their statements. The affidavit also serves as evidence that the testator was legally competent (of sound mind) when the last will and testament was made.
Creating a Valid Will: Things That Are NOT Allowed
There are certain items you want to avoid putting in your last will and testament and some things that are flat-out illegal.
Conditional gifts: You are not allowed to leave conditional gifts, such as bequeathing money to a beneficiary on the condition that they get married, get divorced, or make some other life change.
Final arrangements instructions: Your will is not the best place to write your wishes on final arrangements because a will is typically not read until after the funeral, so your requests may not be carried out. Texas allows for your final wishes to be left in separate writing called Instructions for Disposition of Remains and even allows for you to authorize a person to carry out your wishes.
Allocate property to pets: Don’t try to leave any property directly to your pets. Pets cannot legally inherit any assets. This kind of thing happens more often than you would think! But there are other ways to take care of pets. For example, you can create a Pet Trust and leave assets in a Trustee's care for your pets' benefit.testator's signature
Does A Will Need To Be Recorded In Texas?
In Texas, the Estates Code governs the probate of a will in probate court. The process begins with filing an original or authenticated copy of the will with the probate court in the county where the deceased last resided.
After filing, a citation must be issued to all interested parties notifying them that a will is being offered for probate. The citation includes a notice that any interested person may contest the will and sets a deadline for when any such objections must be filed.
Once these are completed, the last will can be admitted to probate by the court. If all parties agree and no bond is required, the executor of the will can then begin to manage and distribute the deceased's estate according to the instructions in the will. If a bond is required, it must be obtained before an Order of Probate can be issued.
Holographic Wills: Your Handwritten Wishes
In Texas, a holographic will, also known as a handwritten will, is valid under the Texas Estates Code if it is entirely in the testator's own handwriting and signed by the testator.
However, holographic wills must meet certain criteria to be considered valid, including that the valid holographic will is dated. There are also many things that should be included as a best practice, though not required by law, for example, like revoking any prior wills and alternative distributions if the person you want to receive your asset(s) died before you.
Should you include a personal note?
You can attach a personal note to your will in Texas as a way to say goodbye to loved ones. It’s not very common, but it’s a good way to personalize a somewhat sterile document. If there is something more that you wish to say that was not addressed in the original will, a personal note at the end is a good place to say it.
Estate Planning Goes Beyond The Will
Finally, remember that a will is not the only part of an estate plan. Various trusts can be of enormous help, and may have advantages over a will. Even families of modest means with minor children may find them useful.