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. Texas wills offer the testator (the person making the will) the opportunity to provide for a spouse, children, other loved ones, and pets.
A living will is sometimes confused with a last will and testament, but it does not provide for the distribution of assets upon death. Instead, a living will provides instructions for others regarding your wishes should you become incapacitated and incapable of making decisions regarding your medical care.
Do You Need a Last Will and Testament?
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 may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
One of the biggest 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 with a great peace of mind, knowing that her wishes will be followed after her death.
A Texas last will and testament also gives a testator the option of choosing a guardian for minor children. You may also set up a trust through which property is held for the benefit of another.
In addition to testamentary trusts (ii.e., trusts created through a last will and testament) that provide a benefit for people, Texas specifically allows the creation of a trust for the care of pets (commonly called a “pet trust”). Such a trust terminates upon the death of the animal to be cared for under the trust’s provisions.
Another plus of having a valid will is that it can make Texas’s probate process go more smoothly. Probate is the court-supervised process of distributing the estate of a deceased person, and Texas is known for having a relatively quick and simple probate process because of “independent administration,” which allows executors to ask the court to act as independent executors and wrap up estates with little court supervision and intervention. All beneficiaries must agree to this procedure.
In Texas, a will must first be proved in court within four years after the death of the testator; if this does not happen, the will does not enter probate and the testator’s property is distributed through Texas’s laws of intestacy, discussed further below.
Once a will has been proven in court, any outstanding debts and taxes of the estate are paid and then the property of the testator is distributed according to the will’s provisions.
A will may also be used in Texas to disinherit an heir.
Intestacy: Dying Without a Will
If you die before making a valid Texas will, you will not have control over the distribution of your estate as the laws of intestacy will kick in. Intestacy laws provide a framework for the distribution of property among surviving heirs in the absence of a valid will. There are many complex rules for inheritance under intestacy laws, but in most situations, property will pass to spouses, children, or other family members. If no family members can be identified, the property will revert to the state.
Exceptions to Ability to Distribute Property
In Texas, property is classified as either separate, defined as owned before marriage or acquired during marriage by inheritance or gift, or 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 the one-half he or she is entitled to or accept what is provided for in the will.
Form a Last Will in Texas
The basic requirements for a Texas will include the following:
- 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.
- Capacity: The testator must be of sound mind, which means the testator is capable of making decisions and understanding the consequences of making will. The testator must also “have the right and power to make a last will and testament.”
- Signature: The will must be signed by either the testator or another person for him by his direction and in his presence.
- Witnesses: 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.
- Writing: Holographic, or handwritten, wills may be valid in Texas, as discussed more fully below.
- Beneficiaries: A Texas last will and testament may provide for distribution of property to any person, but at least one beneficiary must be named.
Other Recognized Last Wills in Texas
Texas law recognizes holographic, or handwritten, wills, but such a will must be signed by the testator and drafted entirely in his or her handwriting.
In this instance, the will does not need to have the signatures of witnesses and may be self-proved at any time during the lifetime of the testator. This requires an affidavit attesting to the fact that the document is, indeed, the testator’s last will and testament; that he was at least 18 years old, a member of the armed forces, or lawfully married; and that the will has not been revoked.
Changing a Texas Last Will and Testament
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.
Revoking a Texas Last Will and Testament
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.
When you are ready to make a last will, LegalZoom can help you get started in three easy steps. LegalZoom also offers other legal products to help you prepare for the future, such as a living will and power of attorney.