Making a last will and testament in the state of Texas is an important part of estate planning. Creating a will gives you control over how to distribute your assets after you die and allows you to name a guardian for your minor children. Get answers to your FAQs about Texas wills.
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What If I Die Without a Will in Texas?
If you die without a valid will in Texas, you are a decedent who died intestate. Instead of your will determining how to distribute your assets, state laws determine which family members inherit your property. If there is a surviving spouse or children, they inherit the estate. If not, next of kin such as parents, siblings, or grandparents inherit the assets. So, if you have a partner but are unmarried or have stepchildren that you don’t adopt, they are left out of your estate. Because of this, it is essential to create a will so that you have control over how to distribute your assets.
What Does a Will Do?
Your will is a legal document that serves many purposes. First and foremost, your will identifies property and names specific beneficiaries and loved ones you choose to inherit. Additionally, a will allows you to do the following:
- Name a personal representative or executor. A personal representative or executor is responsible for locating your will, moving your estate through the probate process, and obtaining letters testamentary. They ensure to locate all your assets and distribute them according to your wishes.
- Identify and give away personal property and real estate according to your wishes
- Name beneficiaries, your loved ones and family members who will inherit from you
- Make charitable donations
- Name guardians for minor children
- Name caregivers for pets and give money to care for them
Your will can also specify heirs you wish to disinherit so that they receive nothing (note that you cannot completely disinherit your spouse since they are entitled to a minimum amount of your estate even if you leave them nothing in your will).
In Texas, you can donate your body or organs with a statement in your will. However, a will is often not found until it is too late for organ donations. So it is crucial to make your organ donation wishes known in a living will.
A will streamlines the legal process of administering your estate. Because a probate court does not have to make these decisions, it saves time and money.
What Doesn’t a Will Do?
While wills transfer many types of assets to loved ones, some assets do not transfer by your will. These are “non-probate” assets and include the following:
- Life insurance policies payable to anyone other than the estate
- Trusts, including living trusts, and assets owned by trusts
- 401(k) plans
- Property owned as joint tenants with right of survivorship
- Funds in transfer on death or payable on death bank accounts
These assets transfer automatically and do not pass through probate. You should make a list and check that each account and policy have the correct beneficiary name and a backup beneficiary in case they die before you. Any asset without a beneficiary to claim it goes back into your probate estate.
Who Can Make a Will in Texas?
To be eligible to make a will under Texas law, a person making the will (called the testator) must meet the following requirements:
- Age: A testator must be age 18 or older, or is or was married, or a member of the U.S. military
- Sound Mind: A testator must also have testamentary capacity or a sound mind. This means that at the time you sign the will, you understand what the will says, you generally understand what you own, you know who your next of kin is, and you are to make decisions about all of it.
If you have concerns about whether or not you can make a will, you may want to consult an estate planning attorney for legal advice and assistance.
Does Texas Have a Statutory Will?
Texas does not have a statutory will (a form the state provides). You are free to create your own will. Many people use self-help resources such as FindLaw Legal Forms and Services to draft their will according to Texas state law.
What Types of Wills Does Texas Accept?
The most common type of will is typewritten or printed and then signed by the testator with witnesses present. This type of will is the safest and most reliable since your wishes are clearly written and easily understood. There are some other types of wills that Texas permits:
- Handwritten Will: A handwritten will without witnesses, called a holographic will, is valid even if it has no witnesses. However, this type of will is easier to challenge and is not a safe way to make your wishes known.
- Oral Will: Oral wills (such as on videotape) made by the decedent are valid if made before September 1, 2007. Any orals wills made after that date are not valid.
- Electronic Will: An electronic will refers to a will that is either signed, witnessed, or notarized electronically. Texas does not recognize electronic wills at this time.
Can I Make My Own Will in Texas?
Yes. If you meet the testator requirements, you can make your own will in Texas. If you know what property you own and who you want to give it to, you are ready to make a will. You do not need to use an attorney to draft your will. But because a will is a legal document, you want to be sure that the will you create is valid for the Texas probate court. Using a forms services company with state-specific forms, such as FindLaw Legal Forms and Services ensures that the will you make meets Texas requirements. The advantage of using an online will drafting service is that it allows you to customize and update your will whenever you want. For example, if you want to change your beneficiaries or guardians, you can easily make a new will without having to amend the will or make a codicil.
How Do I Make My Will Valid in Texas?
Once you decide how to distribute your assets, you’re ready to make your will. To ensure your will is legally valid in Texas, follow these requirements.
- Signature: You must sign the original will in your own handwriting or direct someone to sign it for you in your presence.
- Witnesses: Two people aged 14 or older must witness the signing of the will. The witnesses should be people who do not inherit anything from your will. A “credible” witness in Texas is disinterested and is not a named beneficiary.
- Notary: Your will does not require a notary in Texas to be valid.
- Self-Proving Affidavit: Although having your will notarized in Texas is not required, it is a good idea for the testator and witnesses to sign a self-proving affidavit before a notary and attach it to your will. This document acts as a sworn statement so the court may accept the will without the witnesses having to testify to its authenticity.
Can I Disinherit My Spouse in Texas?
Some states have a right of election, which means that a spouse has an absolute right to a certain percentage of their deceased spouse’s estate, even if their spouse specifically disinherited them or tried to leave that property to someone else.
Texas does not offer a right of election. However, because it is a community property state, a surviving spouse automatically owns half of the marital assets and has the right to receive at least that much when their spouse dies. If the will gives them more, they can elect to accept that. Additionally, the surviving spouse has a right to a life estate in their spouse’s homestead and may have a right to a family allowance for a year from the estate. If you want to limit your spouse’s inheritance, you may want to get legal advice.
Can I Disinherit My Children in Texas?
Yes, you may disinherit a child in Texas, but the best way to do so is to name them specifically, state you intentionally leave them nothing, and state the reason for the decision. This statement is important because if you create a will and do not mention a child, the court may view it as a mistake and consider them a “pretermitted child.” A pretermitted child is one born or adopted after the date you sign your will. They may receive an intestacy share of your estate.
What Estate Planning Documents Should I Have in Texas?
A will only leaves instructions after you die. A will differs from a power of attorney, healthcare power of attorney, living will, or any other document that controls your assets or health care while you are alive. In addition to a will, you should create other estate planning documents such as:
- Power of Attorney. A power of attorney is a legal document where you name someone you trust as your agent to make financial decisions should you become unable to do so yourself. You can limit what powers you give your agent and decide when their authority begins and ends.
- Health Care Directive. A health care directive or living will is a directive to physicians regarding end-of-life or life-sustaining medical care. You may also make your wishes known regarding organ donation. You may also name someone who can make medical decisions on your behalf if you cannot make them for yourself.
Fortunately, making a valid will and creating other Texas estate planning documents is easy with online estate planning templates.