The basic requirements for a legal will in Texas are pretty simple. In fact, under certain circumstances the state will even recognize an oral will. However, even though your will meets the state’s requirements, it may not be the best course of action for your family. Consider your options.
Yes, it’s true. Texas will recognize a will that is not even written. An oral will must meet two requirements. First, it must be spoken “in extremis,” meaning under extreme circumstances. For example, if a person is on his or her deathbed and has not had the opportunity or ability to make a written will. Secondly, an oral will must be heard by at least three witnesses that are not beneficiaries and are over 14 years of age. It is of note that an oral will can only refer to personal property, not real estate.
Oral wills are rare and date back to a time when Texas was a frontier state and many people did not know how to write. It’s highly recommended that you have a written will. Written wills have pretty basic requirements as well, though. First, they must be signed by the Testator, who must be an adult. Second, a legal will has to be written with “testamentary intent,” meaning the Testator was of sound mind at its creation. Third, it must be signed by two witnesses in front of the Testator. The witnesses must be at least 14 years old and not beneficiaries of the will.
While the legal requirements for a will are simple, the confusion that it may cause after your death can be complex and expensive for your family. Having an attorney draft your will helps to decrease the chances of it being challenged and your wishes not being met. An attorney can also recommend special circumstances for your will and bring up situations for which you may not have accounted. For example, if you have minor children you’ll want to make sure guardianship and a trust for their financial needs is legally established so that they are cared for as you would like. Or, you may want to stipulate that your home passes to your children if your surviving spouse remarries. You might need to appoint a long-term caregiver for a disabled spouse or child. Many variables exist beyond the simple decision of who gets your money and property.
Ford+Bergner has extensive experience in Texas estate, probate and guardianship law. Contact us for help with all your estate planning needs.
Many times when people are considering their estate plans, they always tell their attorney they want to avoid probate if at all possible. However, it often seems that very few people actually know what the word Probate actually means.
Probate is the process in which a Court considers whether or not a Will is valid or not. With proper planning, the probate process is really not as harsh as many believe. In Texas, probate is divided into two broad types of administrations. The first, Independent Administration, means without Court supervision, and the second, Dependent Administration, means with Court supervision.
A properly drafted Will provides for Independent Administration, which allows the appointed personal representative or executor to operate with minimal Court interaction. However, if a person dies without drafting a Will or the Will is contested, often the Court must appoint a Dependent Administrator, whose actions must be approved by the Court at all times. As one would expect, an Independent Administration is the much more cost effective and less complex way to go.
It is important to make certain your Will clearly states your last intentions, and do so in the proper manner in order to avoid the more complex and expensive Dependent Administration. If you have questions regarding the process, please contact the Attorneys at Ford + Bergner LLP for a consultation today.
A frequent question that we are asked by clients wanting to have their estate planning documents prepared is, “Can Any Attorney Draft My Estate Planning?”
The Answer: Texas law allows any licensed lawyer to draft a Will. However, it is most prudent to look for an attorney who specializes in this area. Because any problems in the drafting of the Will may not be discovered until after your death, you want to make sure that you receive competent advice and that your Will is well-drafted from the outset.
Many clients do not understand the difference between a Will and a Living Will. The Living Will has a very different purpose than a traditional Will:
A Living Will is sometimes referred to as a Directive to Physicians. It allows you to direct your doctors that you do not want to be placed on life sustaining support if you are in a terminal condition or an irreversible condition. This differs from a medical power of attorney because it is your direction to your doctor whereas the medical power of attorney is your appointment of a friend or family member to make the decisions for you.
Another question that we receive frequently is whether or not a person can designate a charity as a beneficiary under their Will.
The Answer: Yes. Clients frequently want to leave a gift to their church, college, or favorite charity under their Will. These gifts help those organizations to continue pursuing their missions long after your death and allow you to make a long-lasting contribution to your church, college, or other non-profit organization.
An Important question that we hear frequently: “Can I Use a Form From the Internet to Create My Own Will?”
The Answer: The law allows for you to use a form off the internet, but again, this is not a great idea. These forms are not usually specific to the laws of Texas, so we frequently see clients bring in a loved one’s Will that was created off the internet only to find out that it was missing a requirement under Texas law and is either invalid or is going to require more effort and expense to probate. Unfortunately, by the time they make this discovery, their loved one has passed away, and the problems cannot be fixed. These problems can generally be avoided by having a qualified attorney assist in the preparation of the Will.
Another question that we receive routinely is, “Can I Make a Will Myself?”
The Answer: Texas law does allow someone to create a Will on their own, but it is typically not a good idea. A holographic, or handwritten, Will must be completely in your own handwriting, and it should be signed and dated. If you type the Will, it must be signed, dated, and witnessed by two witnesses. However, we frequently see cases where someone tried to create their own Will but ended up creating a huge mess instead. After death, the self-created Will creates problems because the person who created it did not understand the correct terminology and had unintentionally made ambiguous statements that were not interpreted correctly by the family or the courts. Those mistakes often lead to huge fights that result in fractured families and divisions of property not intended by the deceased. It is much more advisable to have a competent attorney assist you in preparing a Will.