Wills 

A will is often the first document people think of when considering creating an estate plan. A will is a legal instrument that describes a person’s property and outlines the way that property is to be distributed after his or her passing. The person who creates a will is known as a testator. A will allows the testator to specify who they want to receive certain property. For a person to be capable of making a valid will, he or she must have legal capacity, testamentary capacity, and testamentary intent.

A person has legal capacity to make a will if they are 18 years or older.  A person under the age of 18 may still have legal capacity to make a will if they have served in the United States armed forces or have been previously married. Testamentary capacity requires the testator to be of sound mind. A person is considered sound of mind for purposes of testamentary capacity if they understand they are making a will and the effect of such will, they understand the general nature and extent of their property, they know their next of kin, and they are capable of understanding and relating the foregoing factors for the purposes of creating a will. Testamentary intent is satisfied if the testator intended to create a revocable disposition of their property that takes effect at their death. The testator does not have to specifically intend to make a will.

Texas recognizes two kinds of wills: formal and holographic. A formal will must be in writing and signed by the testator in the presence of at least two witnesses. A holographic will is one which is wholly written in the testator’s handwriting and is signed by the testator. Holographic wills do not need to be witnessed to be valid. While holographic wills are often cheaper and easier to create than formal wills, they are also subject to more scrutiny than formal wills, which can cause issues during the probate process.

When a person dies with a will, they die testate, and the terms of the will are followed. An executor is appointed in the will to administer the estate of the deceased. Among the executor’s many powers and responsibilities, he or she is required to file the will for probate. This should be done in the county where the deceased person resided and within 4 years of the date of death.

When a person dies without a will, they die intestate. When a person dies intestate, they have no control over the distribution of their property, and it will be distributed based on the laws of intestacy. Distribution under intestacy depends on what family members survive the deceased and what forms of property the deceased person owned.  

A will gives the Testator control over the disposition of the assets he or she owned at death. Assets that pass by will are called probate assets. However, not all property is capable of being passed by will. Property that is held jointly with a right of survivorship (commonly between married couples) does not pass by will. Property that is held in a trust and property with a beneficiary designation also cannot pass by will. 

To ensure that your assets are properly distributed in the manner you wish, you should consult with an Estate Planning Attorney.