Texas Wills and Probate Guide
Written by James Brandon Gaines, Esq. - Last update: December 10th, 2016
What is a Texas will?
Creating a last will and testament can lay out a plan for the desired distribution of assets including real and personal property upon your death. Wills are the legal document in which a decedent has outlined how he or she would like assets distributed among their loved ones. Texas wills offer the testator (the person making the will) the opportunity to provide for a spouse, children, other loved ones, and pets.
Paying proper attention to estate planning proper is essential because addressing it allows your loved ones to sidestep expensive, protracted legal procedures and helps ensure that your final wishes are followed.Upon death, title to the decedent’s property passes immediately to the beneficiaries under the decedent’s will or to the heirs-at-law if the decedent died without a will.
An estate in Texas is comprised of all of the assets owned by someone at the time of their death—for example—cash, real estate holdings (homes, land, etc.), stocks and bonds, life insurance policies, retirement accounts, vehicles and personal belongings.Real property includes land and improvements located on the land. Real property also includes oil, gas, and other mineral interests.
Your will documents how you want your real and personal property distributed after your departure. A Texas last will and testament also gives a testator the option of choosing a guardian for minor children.Your will should also designate an executor, a trusted individual who will be legally responsible for ensuring that debts are paid and assets are distributed.You may also set up a trust through which property is held for the benefit of another. The Texas will may also be used to disinherit an heir.
One of the biggest benefits of a last will and testament is that it allows the testator to select the executor of the estate, which is highly important, because the executor will be in charge of carrying out the wishes contained in the will and deciding how assets should be divided. With independent administration, there is no court participation in the administration of the estate other than the probate of the will, notice to creditors, the independent executor’s oath, and notice to beneficiaries.
When a person dies without leaving a will, he or she is considered to have died intestate. Although a last will and testament is not legally required, without a will state laws (called laws of intestacy) will determine the distribution of an estate's assets. The outcome under intestacy rules the decedent’s heirs may not be the persons to whom the decedent wished for his or her property to pass. The decedent’s property will be distributed to your heirs according to a formula that the court applies based on specific rules of distribution to your surviving family members.
A Texas last will and testament may be changed at any time by codicil, an amendment to the will that must follow the same procedures as the original will. A written Texas will may be revoked by a subsequent will, codicil, or declaration in writing executed with will formalities, or by the destruction or cancellation of the will either by the testator or by someone else but in the testator’s presence at the testator’s instruction.Our clients are encouraged to keep a copy somewhere easy to locate and to keep the original in a safe place such as a safety deposit box. Also, we keep a copy of the will for safekeeping.
Wills can be complex legal documents. The depth of the assets can further complicate a will, along with the size of the estate and the number of heirs. You are not required to hire an attorney, but having one thoroughly review the will can ensure that the document is legally defensible and correctly written so that it accomplishes your intentions. There are many intricacies to a will in Texas, and an Attorney Prime attorney will insure your will is up to date with Texas statutes, and fulfills your desired outcome.
The Types of Wills in Texas
There are a few types of documents that can be used in a Texas estate plan: wills, living wills, and living trusts. The most common type of document used to distribute property at death is a will, of which there are three types:
Texas Formal Wills: These are normally typewritten or printed wills that may be drafted by a Texas attorney. The upside of a valid will is that it can make Texas’s probate process go smoothly. They must be signed by at least two witnesses as well as by the testator (the person who is bequeathing their estate). A beneficiary under a typewritten will should not serve as a witness to the execution of the will because this may prevent the beneficiary from actually receiving the property bequeathed to them.
Texas Holographic Wills: This type of will is entirely in the handwriting of the testator. The will has to say clearly how the testator wants to distribute his or her property after death and must be signed by the testator. In Texas, as in many states, there cannot be any sections that are typed or written by someone else.
Texas Living Wills: A living will is not the same as a last will and testament, because it does not provide for the distribution of assets upon death. Rather, a living will provides instructions for others regarding your wishes should you become incapacitated and incapable of making decisions regarding your medical care.
Texas Living Trusts: A Trust is created when one person, known as the trustee, holds legal title to property for the benefit of another person - the beneficiary. A living trust is created during the life of the person who creates it. If that person is you, all or most of your property would go into the trust and you would typically be both the trustee and the beneficiary for the duration of your life. The drawbacks of a Texas living trust are that it usually costs more to draft than a will and ownership of all assets must be transferred to the trust property. The purpose of a living trust is to help you avoid probate, perhaps reduce estate taxes, and help you manage your property.
Texas Survivorship Property: Property can be held jointly by two or more people, with the property going to the survivor(s) at the death of one owner. Spouses can only own community property with a right of survivorship if they use the language found in Section 452 of the Texas Probate Code. Ownership with a right of survivorship is not favored in Texas law. This means that if there is any doubt, a court will rule against survivorship. . Survivorship property can include: real estate, bank accounts, vehicles, stocks, bonds, and securities.
Power of Attorney: Granting power of attorney to an individual give that person the power to address your business and personal matters if you become incapable of handling them. You can limit or expand the amount of power that you grant in a Texas Power of Attorney. The power of attorney document can limit your appointee to transacting just the everyday financial matters such as paying bills, or it can allow broader powers such as relinquishing or purchasing new assets. We can also draft a Texas medical power of attorney that will allow an appointee to make healthcare decisions if you are unable to do the same.
Texas Requirements For Wills
The basic requirements for a Texas will are (1) the Will must identify the testator ; (2) the Will must be written with "testamentary intent;" (3) the Testator must have "estamentary capacity to execute a Will; and (4) the Will must be drafted with the required legal technicalities.
Age: The testator must be at least 18 years old, but this requirement will not apply if the testator is serving in the armed forces or is, or once was, lawfully married.
Testemary Intent: The Testator had the intention to create a disposition of his or her property and for it to take effect after their death.
Capacity: A Testator must be someone who has, according to the Texas Probate Code: "attained the age of eighteen years, or who is or has been lawfully married, or who is a member of the armed forces of the United States or of the auxiliaries thereof or of the maritime service.""
Writing: Holographic, or handwritten, wills may be valid in Texas.
Beneficiaries: A Texas last will and testament may provide for distribution of property to any person, but at least one beneficiary must be named.
Signature: Texas permits wills without handwritten signatures, as well as spoken wills to bequeath personal property.
Witness: Generally, two witnesses are required for a valid will. Unless the will is entirely in the testator’s own handwriting, the will must be signed by two or more witnesses over the age of fourteen.
Formalities of Exectution: The formalities of executing a Will are: (1) the Will must be signed by the Testator or by another person at his direction and in his presence; (2) the Will must be attested by two or more credible witnesses over fourteen years of age; and (3) the witnesses must sign in the presence of the Testator.
Dying Without a Will in Texas: If you die before making a valid Texas will, you will not have control over the distribution of your estate as the laws of Texas intestacy will handle the distribution of your assets. Texas Intestacy laws provide a rubric for how your property is distributed among surviving heirs in the absence of a valid will. Ther rules are complicated for inheritance under intestacy laws, but generally, property will pass to spouses, children, or other family members. If no family members can be identified, the property will go to the government of Texas.
Exceptions to Ability to Distribute Property: In Texas, property is classified as either "separate" which is property owned before marriage or acquired during marriage by inheritance or gift, or it is classified as "community", which is property acquired by either spouse during marriage. Because of these classifications, a spouse owns only one-half of community property. If he or she attempts to give away the entire amount of community property in a will, the surviving spouse can either renounce the will and claim their portion of which they are entitled.
When you cannot find the original Texas Will: The Texas Probate Code does allow for a copy of the original will to be probated in the case of a lost will, but this is a difficult and expensive process. There is a presumption that the testatorrevoked it. Thus, a judge may not always admit a lost will to probate. However, Attorney Prime does hold on to a copy of every will that we draft.
The Texas Probate Process
Probate is the process by which a court legally recognizes a person’s death and authorizes the administration of his or her estate. A court determines whether a testamentary document (a will or other document that transfers assets or property) is the true last and valid will of a decedent through the completion of certain requirements.
When you attempt to probate without a will, you should review all of your administrative options with your attorney, because an alternative to probate may be a better option in your situation. The local rules of most Texas Courts hearing probate cases require that a person applying to administer an estate or admit a Will to probate must be represented by an attorney. Administrator: When the decedent has passed on without leaving a valid will and no Executor has been named, Texas law requires that an administrator be named to carry out the duties of an Executor. Because the Executor has important duties to all of the beneficiaries and heirs of the estate, the Courts want to ensure that they are properly advised as to their obligations and duties as the Executor rules that may differ somewhat depending on the Court in which your case is heard.
Initiating the probate process is actually fairly easy. Whether or not the Decedent died with a Will, an application for probate will need to be filed in a Texas Probate Court.To begin the official “probate of the will” you should file an Application of Probate with the proper court (typically in the county where the decedent lived). An executor named in a will or any person “interested in the estate” may make an Application for Probate.Executor: When a person dies with a valid will in place, the document typically names a person to serve as Executor of the Estate. The chief duties of the Executor will be to inventory and catalogue the decedent’s assets; pay debts of the estate; pay taxes of the estate; file lawsuits for claims owed to the estate; and distribute assets from the estate to the beneficiaries as named in the decedent’s Last Will and Testament. The application must be filed within four years after the decedent’s death. After the application is filed, a citation is issued and notice must be provided before a hearing on the application may be held The probate of someone’s estate refers to the process by which a Court recognizes that person's death and authorizes the administration of that person's estate.
At Attorney Prime, we are dedicated to your estate planning needs. Contact us today for a free consulation, and let us know how we can help.