Sitting down to write a will can seem straightforward. After all, you’re just naming everyone who gets your money and property, right? However, a will is more complex than putting together a list. To be valid in Texas, a will must follow specific guidelines or risk being discarded in a probate court. Here’s what to know and your options for writing a will if you live in The Lone Star State.
A financial advisor can help you create an estate plan to preserve your assets for your family.
What Is a Will?
A will is a legal document defining how you want your assets (including your wealth and property) to be distributed after your death or incapacitation. It is a critical part of estate planning because it describes how you want your executor to distribute your estate (assets and liabilities) and who will care for your minor children if you no longer have decision-making capacity or pass away.
In other words, a will is a legally valid document expressing how the testator (the person writing the will) wants to pass on their wealth after they are gone and ensure their loved ones receive as much support as they can give. For this reason, a will should be exhaustive in its description of how assets should be distributed and clear about who would care for your children and pets if you’re no longer there to care for them.
Why Do You Need to Write a Will?
Your will performs several vital tasks for your estate plan. As a result, it’s the centerpiece of caring for your loved ones, whether you’re a young parent wanting to ensure the best for your children or a retired couple wanting to leave a philanthropic legacy through your end-of-life plan. Here are the specific reasons to write a will:
Asset Distribution
A will specifies how the deceased person’s assets, such as real estate, cash, and investments should be distributed among beneficiaries. A will can be as nuanced as you like to ensure that the your wishes are followed.
For example, if you have three young children, you can divide your estate evenly between them. Because they’re young, you can add a condition that they inherit their share when they turn 25. On the other hand, if you don’t have any beneficiaries, you could name a charity to receive your wealth.
Guardianship for Minors
A will is the sole document allowing you to appoint guardians for minor children. As a result, a will is essential for parents because there is no other tool for assigning guardianship for kids. Even better, you can decide if the guardian will also manage a child’s inheritance when they come of age, or assign a separate trustee this responsibility to instill checks and balances.
Charitable Bequests
Some individuals and couples choose to include provisions in their wills for charitable donations, specifying which organizations should receive assets or funds. Donations can be cash, stock, or other valuable property.
Guide the Probate Process
A will must go through probate for your executor to act on its wishes. As a result, a well-written will is crucial to guide your executor and the probate judge through distributing your assets.
While some aspects of probate are unavoidable (such as taking inventory of your estate and ordering an appraisal of your possessions), other steps (such as disputes from interested parties claiming the right to some or all of your estate) rely on your will for direction. A thorough, clearly written will means the legal process will result in your beneficiaries receiving what you set aside for them.
Family Harmony
A clear and legally binding will can defuse tension among family members who would otherwise argue about their right to certain assets. It provides a transparent and documented plan for everyone involved. Therefore, writing a will ahead of time and having conversations about it with your loved ones can get everyone on the same page well before a probate judge reviews your will.
What Happens If You Don’t Have a Will in Texas?
If you die without a will (intestate) in Texas, state laws step in to distribute your assets. Beneficiaries will receive your assets in the following order of priority:
- A surviving spouse
- Children
- Parents
- Siblings
- Extended relatives
How the property is distributed among these parties depends on the property ownership status of each asset. For example, a house is usually community property a person co-owns with their spouse. However, if you bought the home before getting married, your spouse might not have ownership rights to the home unless you made an explicit effort to name them as your beneficiary. Because Texas intestate laws are complicated, there’s no guarantee who would end up owning the home without a detailed estate plan in place.
Fortunately, you can avert this process with a will and choose an executor to carry out your wishes. The executor should be a person who understands what you want for your beneficiaries and has your trust to perform their duty faithfully. The executor will work with a probate court to pay off lingering debts that creditors can claim against your estate and ensure your beneficiaries receive their inheritance.
Remember, intestacy only applies to specific asset classes. Some assets override state laws and the words expressed in a will by naming a beneficiary ahead of time. For example, life insurance is an estate planning tool that the grantor names upon purchasing the policy. The person named on the life insurance policy is unaffected by state laws or the terms of a will.
Legal Will Requirements in Texas
Now that the significance of having a will is clear, you might be ready to grab the nearest piece of paper and scribble down your wishes for your estate and loved ones. Unfortunately, a valid will must meet the criteria laid down by Texas laws. Here are five requirements for a legal will in Texas:
- The will must be typed or handwritten. A handwritten will is called a holographic will.
- The testator must be 18 or older to write a valid will.
- The testator must be of sound mind, meaning they aren’t creating the will under coercion, stress, or unawareness. Mental health problems and drug use can also cause someone to be not of sound mind.
- The testator must demonstrate “testamentary intent,” meaning they are writing the will to declare how they want their beneficiaries to receive assets. The will must be transparent and leave no doubt about who you want to leave assets to.
- Finally, you must sign the will by hand in front of two witnesses. These witnesses must be over 14 years old and will also sign the will in front of you after you sign. The witnesses must also be disinterested, meaning they can’t receive anything from your will. If they do, their signatures are invalid.
Additionally, while not a legal requirement, notarizing the will after completing these steps is recommended. Notarizing the will gives it “self-proving” status, which usually expedites the probate process. Otherwise, your witnesses will have to personally testify in probate court when the judge reviews your will, increasing the time and money it takes to process the case.
Types of Wills in Texas
Texas law allows two types of valid wills: holographic and formal. Holographic wills are entirely handwritten by the testator. This type isn’t recommended because handwriting can be challenging to read, and every letter on the page must be written by you to be a valid holographic will.
Plus, the court will call a witness who knows you to verify that the will contains your handwriting. If the witness’s testimony is shaky, the court might even pay an independent handwriting professional to check your handwriting. These steps prolong the probate process and make it more expensive.
Additionally, holographic wills don’t require a witness to be valid. While this feature streamlines the writing process for the testator, it’s problematic in probate court. The lack of witnesses can degrade the will’s effectiveness because no one was there to attest to your mental fitness when writing it. As a result, a family member you deliberately didn’t mention in the will could argue in court that they deserve some or all the wealth you set aside for other beneficiaries.
A formal will is your other option in Texas. This option means printing out a typed will template from the internet or hiring an attorney to draft the will. Then, you sign it in front of two disinterested witnesses and get it notarized. While a formal will may incur the expense of paying an attorney, it sidesteps the potential pitfalls of a holographic will and ensures the language in the document is clear and legally sound.
Steps to Writing a Will If You Live in Texas
In Texas, writing a will involves several essential steps to ensure that your wishes are legally documented and can be carried out smoothly.
Pick the Type
In Texas, you can choose between a formal will and a holographic will. Remember, a formal will is a typed and printed document you can find online or create with a lawyer’s assistance. A formal will usually has less legal issues down the road. On the other hand, a holographic will is handwritten and doesn’t require witnesses. For these reasons, a holographic will is quicker to write but can invite disputes from interested parties when the will goes through probate.
Include All Your Assets and Beneficiaries
Clearly list all your assets, including real estate, bank accounts, investments, personal belongings and any other valuable items. Specify how you want these assets to be distributed among your beneficiaries. Provide detailed instructions to avoid any confusion. Remember, beneficiaries can include heirs and charities you want to donate to from your estate.
Assign Guardians If Necessary
If you have minor children, you should designate a guardian for them in your will. This ensures that someone you trust will take care of your children if you and the other parent are unable to do so. Discuss this decision with the chosen guardian beforehand to ensure their willingness to accept this responsibility. Likewise, pet owners can define a new owner in the same way.
Appoint Your Executor
Choose an executor (also known as a personal representative) who will be responsible for administering your estate. This person will carry out the instructions in your will, manage your assets, pay debts and distribute property to beneficiaries. Select someone trustworthy and capable of handling these responsibilities.
Sign Before Two Witnesses
In Texas, a formal attested will requires the signature of the testator and the signatures of at least two credible witnesses. The witnesses must be at least 14 years old, competent, and not beneficiaries in the will. They should witness the testator signing the will and then sign it themselves. This process helps ensure the validity of the will. Remember, if you choose to create a holographic will, it must be entirely in your handwriting, dated, and signed. It does not require witnesses.
How to Revoke or Change Your Will in Texas
The twists and turns of life can bring unexpected changes, such as the birth of a child, the falling out of a relationship, or a new marriage. When these occur, adjusting your will may be necessary to ensure your assets go to the intended parties. In these cases, you have two options in Texas for modifying your will: revoking or changing it.
Revoking the will means nullifying the document’s terms altogether. You can achieve this by writing a new will. Remember, the will with the most recent date is the enforceable one; older wills are obsolete. So, writing another will cancels out the ones you’ve written before.
You can also revoke the will by destroying it. The enforcement of a will depends on its physical existence. So, to revoke your will, destroy the original document and all copies. Shredding or burning it is advisable to ensure it can’t be recovered or pieced back together. However, you’ll need to write a new will to assign who receives your assets. Otherwise, Texas intestate laws will kick in after you pass away.
On the other hand, you can change your will by adding a codicil. A codicil is a legal document that updates but doesn’t replace the will you already have in place. This option is a quick fix for simple matters, such as leaving your bank account to a new grandchild. However, numerous codicils can make the will hard to decipher. As a result, writing a new will is recommended if you want to make significant changes.
Bottom Line
A will plays a central role in guiding the probate process, promoting peace in your family and allowing for charitable bequests. Writing a will in Texas involves selecting the type, listing assets and beneficiaries and signing before two witnesses. While these steps can take time and money, completing them is necessary to ward off the intestate laws of Texas from governing your estate.
Tips for Writing a Will in Texas
- Juggling the legalese and various requirements of writing a will in Texas can be challenging. Fortunately, a financial advisor can guide you in creating a comprehensive estate plan. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
- Passing on wealth to your heirs won’t trigger state taxes in Texas. However, no matter where you live, it’s essential to understand the estate taxes levied on a federal level.
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