Texas last will and testament: A comprehensive guide

You’ve worked hard to build your estate, but have you thought about what will happen when you die? Creating a Texas last will and testament is crucial in ensuring your wishes are followed and your loved ones are provided for after your death. Especially in Texas, where unique community property laws can complicate inheritance, having a will is even more critical. Are you ready to take this vital step towards securing your legacy?

Key takeaways for a Texas last will and testament

• A Texas last will and testament requires the signature of two disinterested witnesses and is recommended to be notarized, with specific provisions allowing the exclusion of heirs and the designation of beneficiaries.
• Texas recognizes holographic wills, which are entirely handwritten by the testator and do not require witness signatures, and for a will to be valid, the testator must be at least 18 years old and of sound mind.
• Texas does not impose estate or inheritance taxes. Still, federal estate tax exemption thresholds apply, and seeking legal counsel is advisable for those with complex estates or needing a self-proving will.

Do you need a last will and testament in Texas?

Although a last will and testament are not legally required, without a will, Texas state laws will determine the distribution of an estate's assets. The outcome under intestacy rules may not coincide with the decedent's wishes.

One of the most significant benefits of a last will and testament is that it allows the testator to select the executor of the estate—an important decision, as the executor will be in charge of carrying out the wishes contained in the will and deciding how assets should be divided. Because of this, creating a will often provides the testator's presence with great peace of mind, knowing that their wishes will be followed after her death.

Understanding a Texas last will and testament

A Texas last will and testament is a legal document that outlines your wishes regarding the distribution of your property, the guardianship of any minor children, and the appointment of an executor after your death, following Texas law. The person creating the will is referred to as the "testator." A valid will in Texas requires the document to be signed by two witnesses  at least 14 years old. Although notarization is not mandatory, it’s highly advisable.

Once the will has been executed, it is prudent to:

• Keep the signed original in a safe location
• Let someone trustworthy know where it is
• Make duplicates
• Ensure the executor and the children’s guardian, if any, know its location

According to intestacy regulations, your assets will be distributed to your spouse, children, or other living relatives if you don't have a legally recognized will or testament in Texas. However, a will allows you to exclude an heir and designate any individuals as beneficiaries to inherit your possessions.

Key components of a valid Texas will

Several crucial factors must be considered when creating a valid will in Texas. The individual creating the will, known as the testator, must be at least 18 years old and of sound mind. A written will must be witnessed and signed by a minimum of two disinterested witnesses (not related to the testator by blood, adoption, or marriage, and not potential beneficiaries or heirs of the estate), who are at least 14 years old, and witnessed the testator’s signing of the original will.

Age and mental capacity

In Texas, one must be at least 18 years old to draft a will. Minors under 18 are not permitted to create a will under any circumstances. Mental capacity is assessed based on the testator’s ability to understand the process of making a will, the repercussions of their decisions, the nature and extent of their property, and the effects of including or excluding individuals from their will.

If a testator's mental capacity is contested, it could lead to the will being challenged. Substantial evidence of a lack of testamentary capacity could invalidate the will.

Written format and signature requirements

A "written" will in Texas is one that:

• Is executed with testamentary capacity, without undue influence, and meets age and mental capacity criteria
• If it’s handwritten (holographic), it must be entirely in the testator’s handwriting
• The will must be signed by the testator in the specific signature area rather than anywhere on the document
• This signature must be executed in the presence of two witnesses who must also sign the will

The signature of the testator must be in their own handwriting, to be valid. The entire document should be written by them and appropriately signed.

Key requirements for creating a valid will

• You must be 18 years old or older
• Be of sound mind, which means you can understand the process of creating a will
• Written without undue influence or under duress
• Written on paper, either typed/printed or handwritten in the testator's handwriting
• The will must be signed by the testator in the presence of two witnesses
• Signed by two witnesses

Holographic wills: An alternative option in Texas

Texas legally recognizes a holographic will, also known as a handwritten will. Unlike typed or formally prepared wills, holographic or handwritten wills in Texas do not require witnesses as long as the will is entirely in the testator’s handwriting. It is crucial that no other text is present anywhere on the page apart from the handwriting of the testator, or else the whole will may be invalidated.

A holographic will can be made self-proving in Texas while the testator is alive, potentially streamlining the probate process after the testator’s death. To be considered self-proved, the testator must:

• Sign the will
• Write it entirely in their handwriting
• Attach an affidavit affirming that the document is their last will, that they are of legal age or status, and that the will has not been revoked.

Executor selection and responsibilities

Selecting a reliable and responsible executor is critical to formulating a will in Texas. You must obtain their consent, and they must meet the necessary qualifications and either reside in Texas or designate a resident agent. The executor is responsible for ensuring the proper execution of the provisions in the will following your passing and is entrusted with managing the probate estate in Texas.

The executor’s duties include:

• Filing final tax returns
• Settling outstanding debts and taxes
• Identifying and notifying creditors
• Managing outstanding debts
• Administering, distributing, and concluding the estate

Protecting your spouse and children in your Texas will

Community property in Texas refers to assets and debts accumulated by a married person during marriage, and both spouses are considered joint owners of the estate’s assets, including real and personal property. Understanding this concept is essential when creating a will, as it ensures the proper consideration of inheritance rights for your spouse and children.

However, a will can only control an individual’s half interest in the community property. The other half legally belongs to the surviving spouse; a will cannot dictate its distribution. To safeguard and protect your spouse’s inheritance rights, you can:

• Include specific provisions in your will regarding the distribution of community property
• Establish a revocable trust to manage assets
• Consult an estate planning lawyer to ensure your will aligns with your needs and Texas legislation

Probate process in Texas

Probate refers to the probate court-supervised process of distributing a deceased person’s assets to their beneficiaries. Wills must be filed for probate within four years from the date of death of the person who drafted the will.

Texas offers two types of probate processes: independent administration and court-supervised administration. Independent administration allows executors to settle the estate with minimal court supervision, facilitating a quick and straightforward process.

On the other hand, court-supervised administration requires approval for most actions sought by the executor. This approach may be necessary in instances of a complex estate or discord among the beneficiaries, for example, where related administration forms might not be sufficient.

Modifying or revoking your Texas will

A codicil, a formal legal document, can be used to modify your Texas will. For a codicil to be legally valid, it must be signed by the testator and two witnesses, and the testator must be mentally competent. However, legal professionals typically advise against using codicils due to the challenges of managing multiple documents and potential complications in interpreting the will-maker’s intentions.

An existing will can be annulled by drafting a new will that overtly cancels the old one, making a written revocation declaration, or physically destroying the original document, provided this is done before the testator’s death and there is no previous agreement inhibiting this form of revocation.

Digital and electronic wills in Texas

As of now, digital or electronic wills are not permitted in Texas. In Texas, traditional wills must be handwritten and signed by two witnesses. A digital or electronic will is a will that is generated, signed, and preserved electronically, eliminating the need for physical documents. It typically involves electronic signatures from the testator and witnesses.

The legal debate surrounding digital and electronic wills revolves around their validity and enforceability. Concerns about authenticity and the potential for fraud are substantial, particularly as some states do not recognize these related forms of wills while others have begun to do so under specific circumstances.

Estate and inheritance taxes in Texas

Texas residents are exempt from estate or inheritance taxes, as the state does not impose these levies. However, you should consider the federal estate tax exemption thresholds for estate planning.

The federal estate tax exemption threshold for individual taxpayers will be $13.61 million in 2024. Married couples will have a threshold of $27.2 million. Note that this threshold is set to expire at the end of 2025, at which time it will essentially be cut in half. If this change will affect you, consider consulting a tax professional or an estate planning attorney knowledgeable in tax law regarding options to potentially take advantage of the current tax exemption threshold via an irrevocable trust.

Legal assistance and DIY options for creating a Texas will

You have the option to draft a personal will in Texas. Several online platforms, such as Nolo’s Quicken WillMaker & Trust, can guide you through the process. However, suppose you anticipate that your will might be contested. In that case, if your estate planning goals are complex or you need guidance for making your will self-proving and managing estate-related legal issues, it’s advisable to seek legal counsel.

The anticipated cost of legal fees for creating a last will and testament in Texas with the help of a traditional lawyer may range from $200 to $1,000, depending on the complexity of your last estate plan and the legal services needed.

Understanding what's required

In summary, creating a last will and testament in Texas is crucial in ensuring your estate is distributed according to your wishes upon death. By understanding the legal requirements, choosing the right executor, and considering your spouse and children’s inheritance rights, you can leave a legacy that benefits your loved ones and honors your life’s work.

FAQs

What are the requirements for a will to be valid in Texas?

To be valid in Texas, a will must be in writing, signed by the person making the will, and the person making the will must be eighteen or older, of sound mind, and have testamentary intent.

Can you make a will in Texas without a lawyer?

Yes, in Texas, you can make your own will using a tool like Nolo's Quicken WillMaker & Trust. Still, in some situations, it is advisable to consult a lawyer, especially if you believe your will may be contested or have complex goals.

Do you have to file a will with the court in Texas?

No, it is not required to file a will with the supreme court in Texas. However, ensuring the right people know where to find the will is essential.

Is a last will and testament public record in Texas?

Yes, a deceased person's last will and testament is a public record in Texas once it is filed for probate. Anyone can obtain a copy by contacting the county clerk where the probate was filed.

Last will and testament Texas?

Creating a last will and testament in Texas allows you to plan the distribution of assets, including real and personal property, to your loved ones and even pets. (Avoid mentioning specific details such as advice or medical care, for example.)