Making a Will in Texas

Estate Planning

No matter how many birthdays you've had, it's a good idea to have a will. You may think you're too young to have anything of value, but value comes in many forms. A particular item may not mean much to anyone else, but it does to you. Who do you want it to go to? Why do you want that person to have it? Do they understand why? And wills are not set in stone. They may, and should, be updated as your life changes, such as when you get married or have children. Luckily, making a will in Texas is very simple and painless.

People often ask if you have to have a lawyer to make a will in Texas. Legally, no. However, estate laws and probate laws are very specific and complex. You may think that the will form you bought at Staples is “legal” and end up making a complete mess of your probate when you die. This mistake will cost your estate a lot of time and money. A lawyer familiar with estate and probate laws could help you write a will that would ensure your wishes are carried out. Probate in Texas is very quick and easy IF you have a properly drafted will.

To legally make a will, you must have testamentary intent or show it is your goal to create a will directing what will be done with your assets after your death. You must also have testamentary capacity, meaning you know that you are creating a will and the results of that document. This is what's known as “being of sound mind.”

You will now need to choose an executor. The executor’s job is to gather up your assets, pay off your debts, and distribute what’s left according to the terms of your will. He or she is responsible for the protecting your property, money, or other valuables during the distribution process, so you should choose someone extremely trustworthy. Because they may need to sign legal documents, the executor must be at least 18 years old.

A couple areas you should address when creating your will:

  • Beneficiaries – Who do you want to receive your assets, such as your spouse, children, parents, siblings, charity?
  • Trusts – A trust in your will, or testamentary trust, can dictate who will take care of any property you leave to your minor children and how they will manage the funds until they come of age.

You may also have to address the complicated issues that accompany owning a business or otherwise larger estate.

This is a good time to point out that if you die without a will, or intestate, the State of Texas will dictate how your estate will be divided. Based on family relationships, your estate would be divided between your living spouse, your living children, your living parents, your living siblings, then a complicated combination of living family members in varying combinations. Did you remarry? Is that spouse still living? Did you have children with that spouse? Eventually, a stranger will distribute your estate. Costly family heirlooms or property could go to someone with no ties to them and your wishes would not be met. Having a properly drafted will makes sure this doesn't happen.

The most common form of will is known as an attested or typed will. Once the attested will has been drafted, you must sign it in front of two witnesses, who must be at least 14 years old. Those witnesses must then sign it in front of you. Wills in Texas don't have to be notarized, but doing so saves a lot of time in probate court. A self-proving affidavit is a document signed by the testator, or person creating the will, the witnesses, and the notary testifying that the testator was eighteen or older when they signed the will and the witnesses were at least fourteen. By including this notarized document, the probate court does not have to spend time locating the witnesses to make statements or finding other ways to prove the will’s validity if the witnesses aren’t available.

There are different ways to make changes to your will. You may make a completely new one, but it is easier to add a codicil, or a document that amends part of a will without changing the entire thing. Making any changes by hand without a witness is not acceptable. Changing your will is very tricky, and you shouldn't do so without the guidance of a lawyer.

It's easy to put off making a will, but the quickest way to make a probate lawyer richer is to either have no estate planning done or do your own will and completely mess it up. Making sure your loved ones are cared for and your wishes are known can bring you a little peace of mind in a very hectic world.