Texas Wills

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A Texas Will or Texas Last Will and Testament is a legal document made to take affect at the time of your death. The primary purpose of making a Will is to manage who inherits your property. Other benefits include reducing tax liability, excluding persons from inheriting your estate and providing for a pet, disabled person or minor children.

Many people shrug of the responsibility of making a Last Will, thinking they don’t need one. The truth is, everybody who is legally entitled should make a Texas Will.

What happens after I die?

After death, your Texas Will needs to be submitted to the probate court for approval. This means the court will examine your Will and testimony of witnesses that signed it. The purpose is to ensure that you were sane at the time of signing the will, under no duress and that execution formalities were complied with. Once satisfied, the court admits you Texas Last Will and Testament to probate. If your Will is rejected, then your assets will be distributed in accordance with the laws of intestacy. This is why extreme care should be taken when drafting your Texas Last Will.

What can I include in my Will?

There are a number of matters which you must tend to. Others are optional. Firstly, you must appoint an executor. This is the person who administers your estate. They collect your assets, petition for probate and distribute them as required by your Will. You should name a successor executor in your Texas Will to ensure you have a backup who can take on the role.

As to gifts, you can either bequest specific property and then deal with the residue or you may just refer to all your estate. If you make specific bequests, make sure to include the name and address of the person who is to inherit the particular property and to include a residuary clause. In either case, ensure that the Texas Will provides successor beneficiaries in the event the first-named beneficiary dies before you.

If you have minor children, your Texas Last Will and Testament can include a trust and should also appoint a guardian. Even if the children’s other parent is still alive, a guardian should be named in both your Texas Wills to ensure your wishes are noted in the event something happens to both of you or if the other parent is found to be unsuitable. A Texas Will should account for all possibilities.

Finally, a Texas Will can include instructions for your burial or cremation. You can simply leave the details to your executor or, if you wish, you can add specific details as to funeral arrangements, disposal of your body and the content of your funeral service.

When does my Will expire?

A Texas Will never expires. It remains valid until you formally revoke it in accordance with the statute.

What about my debts?

A standard Texas Last Will and Testament ensures that your executor has power to pay your debts before distributing any party of your estate. Your executor holds your estate on trust until all debts, liabilities and testamentary expenses are paid off. If you give someone an asset, say you give your home to one of your daughters, then you can specify for her to pay off the mortgage. Alternatively, the loan can be paid off from the estate, depending on your wishes.

How do I make a Will?

Texas Wills need to be in writing and formally executed (signed and witnessed). You can either speak to an attorney or use a standard Will form in order to write one yourself. If your Last Will does not comply with the formal requirements, then it may be held invalid and will end up having no effect. This is why you must strictly follow the formalities set down by law when making your Will.

Texas Will Requirements

Who may make a Texas Will?

Any person 18 years or older may make a Will as long as they are of sound mind. A Texas Last Will and Testament may be made by an under age person if he/she is or has been lawfully married or is a member of the US armed forces or their auxiliaries or a member of the maritime service. §57

Formal Requirements

A Texas Will must be:

  • In writing;

 

  • Signed by the testator;

 

 

  • Attested by two or more credible witnesses (who must be over 14 years of age).

 

The witnesses must sign and subscribe their names to the Will in their own handwriting in the presence of the testator. §59

Spouse as a Witness

Never use your spouse or any other person receiving a benefit under your Texas Will as a witness. If you do, any gift to them becomes void. The gift is only revived (to a limited amount) if that witness would have otherwise inherited under the laws of intestacy. §61

What happens if I get divorced?

If you become divorced or your marriage is annulled, your Texas Will remains valid. Only those provisions in favor of your former spouse or appointing them as a fiduciary are void. In terms of those provisions, your Will is interpreted as though your spouse died before you. §69 You should update your Texas Last Will and Testament as soon as you become divorced to ensure your wishes are accurately represented.

How can I revoke my Will?

There are several ways to cancel a Texas Will. These include:

  • A subsequent Will;

 

  • Codicil;

 

 

  • Declaration in writing (executed with the same formalities as a new Will);

 

 

  • Destroying or cancelling the former Will.

 

Complex legal issues can arise if your Will is not revoked properly. To be sure, you should expressly revoke all your former Wills in writing (as required above) as well as physically destroying the old Will.

Where can I deposit my Texas Will?

Texas Wills are accepted by the county clerk where you reside. You may need to provide proof of your identity and residence. A fee of $3 applies and you receive a certificate of deposit. Once accepted, your Texas Will is enclosed in a sealed wrapper and noted with the name and address of the person to be notified after your death. §71

Holographic Wills

A Texas Will may be made in holographic form. This means the formal witnessing requirements may be dispensed with if the Will is written wholly in the handwriting of the testator. §60 Do not rely on this provision to make your Texas Last Will and Testament. Always comply with the formal requirements to ensure your Will is accepted by the court.

Nuncupative Wills

A nuncupative Texas Willis one which is made verbally. Strict conditions apply to such Wills. They can only be made:

  • At the time of the deceased’s last sickness;

 

  • At his/her home (limited exceptions apply);

 

 

  • Applicable to personal property;

 

 

  • Up to the value of $30, unless three credible witnesses can prove that the testator called on a person to take notice or bear testimony that such is his/her Will (or words to that effect). §65

 

As you can see, a nuncupative Texas Will only applies in the strictest limited circumstances. Once again, you don’t want to rely on such a Will to dispose of your property.

Texas Wills & Probate

Time Limits

A Texas Last Will and Testament must be probated within four years from the death of the testator. Some exceptions apply to this rule. §73

Possession of the Will

The person who has custody of a Texas Will must deliver the original to the appropriate court upon receiving notice of the testator’s death. Penalties apply for breach. §75

Application for Probate

Any interested person is entitled to apply to the court for probate of a Texas Will. The application can ask for one or more of the following orders:

  • That the Will be admitted to probate;

 

  • Appointment of the executor if one is named in the Will;

 

 

  • Appointment of an administrator if no executor is designated in the Will or if the named person is unwilling or unable to act. §76

 

Who can act as personal representative?

The person appointed by the court under letters testamentary or letters of administration. The order of priority is:

  • The person named as executor in the Texas Will;

 

  • The surviving husband or wife;

 

 

  • The principal beneficiary;

 

 

  • Next of kin;

 

 

  • A creditor of the deceased;

 

 

  • Any person who applies for the role and who is of good character and resides in the County; or

 

 

  • Any other person who is not disqualified under statute. §78

 

Proof of the Will

Probate is granted once the Texas Will is proved. This can be easy if there are no objections and the Will is already self-proved through affidavits. Otherwise, sworn testimony or affidavit of one or more of the attesting witnesses to the Will is required. S84

Loss or Destruction of the Will

If the original has been lost or destroyed, it may still be proved in court in the same manner as an existing Will. In addition, the cause of the Will’s non-production must be proved. The court must be satisfied that the Texas Last Will and Testament cannot be produced by any reasonable diligence. Also, the contents must be substantially proved by a credible witness who has read the Will or heard it read. §85

Order for Probate

Once the court is satisfied with all necessary requirements, it enters an order of probate. §89

Texas Estate Tax

Texas does not require an inheritance tax return to be filed if the death occurred on or after January 1, 2005. For deaths prior to this date, a return needs to be filed with the Texas Comptroller of Public Accounts if a United States Estate tax return must be filed.

Contesting a Texas Will

Time Limits

After a Texas Last Will and Testamenthas been admitted to probate, any interested person may contest its validity by instituting court proceeding:

  • within two years after probate; or

 

  • where forgery or fraud is concerned, within two years after the discovery of the forgery or fraud; or

 

 

  • Within two years after removal of a disability if the contest is by an incapacitated person. §93

 

Grounds for Contest

A Texas Will cannot be legally challenged simply on the basis of an insufficient share. In other words, you cannot object to a Will just because you feel you should have received more. Proceedings for contesting a Texas Last Will and Testamentcan only be instituted on valid grounds, including:

  • That the testator was of unsound mind at the time of making the Will;

 

  • There was undue influence or duress;

 

 

  • Fraud or forgery;

 

 

  • Improper execution (signing or witnessing).

 

If you object to the validity of a Texas Will, you should seek advice from an attorney about contesting. Will contests are a form of litigation, which can be expensive and counterproductive without proper advice.

Using a Texas Will to Disinherit Family

Many people ask about disinheriting a spouse or child from their Texas Last Will and Testament. The issue is not simple. You cannot exclude such family members just by omitting them from your Will. Disinherited family members have minimum protections offered by the law. You should seek guidance from an attorney if you wish to disinherit a spouse or child.

Excluding a spouse

The probate code provides minimum protections for a spouse regardless of being omitted from a Texas Will, including:

  • A right to use or occupy the homestead for the reminder of your spouse’s life. After his/her death, the homestead is partitioned among your heirs. §284

 

  • A family allowance for the support of your spouse and minor children for a period of up to one year following your death. §286-8

 

 

  • Entitlement to all your property which is exempt from execution or forced sale under the state laws. If there is insufficient exempt property, then the court may award an allowance in lieu of such property. §271-2

 

Excluding Children

Disinherited children have fewer rights than a spouse if excluded from a Texas Last Will. For example, a child may apply for exempt property (other than the homestead) as long as they are unmarried and remaining with your family after your death. The court may then allocate such property for the use and benefit of that child and/or the surviving spouse, minor children and any other such unmarried children remaining with the family. §271 However, certain circumstances entitle a child who has been omitted from your Will (called a pretermitted child) to a share of your estate. For example, a child born after your Texas Will is entitled to the same portion of your separate and community estate as other children mentioned in your Will if that same Will did not provide for the omitted child. §67 It is therefore important to keep your Texas Last Will and Testament up to date, especially when a life changing event occurs, such as having a child.

Dying without a Texas Will

If a person dies without leaving a valid Texas Last Will and Testament, the state intestacy laws determine how his/her property passes. The portions depend on whether there is a surviving spouse.

How much does my spouse receive?

A distinction is made between community and separate property. Your spouse will receive the following portion of each:

Community Property

  • If you don’t leave any children or their descendants – all the community property;

 

  • If you leave children or descendants (all of whom are also children or descendants of your spouse) – all the community property;

 

 

  • If you leave a child or children or other descendant (who is not a child or descendant of your spouse) – ½ of the community property. The other half passes to your children or to their descendants by representation. §45 & 43

 

All other Property

  • If you don’t leave any children or descendants – all your separate personal property and ½ of the real estate. The other half is split between your parents. Your spouse will only be entitled to the whole estate if you have no mother, father, brothers, sisters or their descendants surviving you.

 

  • If you leave a child or children or descendants – 1/3 of your separate personal property and a life estate in 1/3 of the real estate.

 

Who receives the rest?

Any balance not inherited by the spouse (or all of the estate if there is no surviving spouse), is distributed to heirs in the following priority:

  1. To your children equally (if a child has predeceased you, then his/her children equally share the portion which their parent would have received). Any real estate returns to your children once your spouse’s life estate expires.

 

  • Your mother and father in equal portions (if one has predeceased, then his/her share passes to your brothers and sisters and their descendants. If there are none, then the surviving mother or father inherits the whole estate).

 

 

  • If there is no mother or father surviving you, to your brothers and sisters and their descendants per stirpes.

 

 

  • To your grandparents or their descendants. §38

 

Case Studies of Texas Intestate Succession

Texas intestacy law is very complex. Here are some case studies to help illustrate what happens to your property if you pass away without a Texas Will: Husband died without a Will – intestate share of wife and children: Adam passed away without a will. He had two children to his wife Susan. The community property is $100,000. Adam also had: non-community property: real estate worth $300,000 & personal property of $60,000. Who gets what? Susan: $100,000 community property, life estate in the real estate up to $100,000 value & $20,000 personal property (total $220,000 value), Children share equally: $200,000 value in real estate, the remaining real estate once Julie dies ($100,000 at time of Adam’s death) and $40,000 in personal property. Husband passes away intestate – no Texas Will, share of spouse, children and stepchild: In the case study above, if Adam had a child from a former partner (Susan’s stepchild). Who gets what? Susan: $50,000 community property, life estate in the real estate up to $100,000 value & $20,000 personal property (total $170,000 value), Children & Stepchild share equally: $50,000 in community property, $200,000 value in real estate, the remaining real estate once Julie dies ($100,000 at time of Adam’s death) and $40,000 in personal property. (total $390,000). Distribution to child and grandchildren when widow grandmother died without a Texas Will: Shirley died without a will. Her estate is worth $300,000. She had 3 children with her husband (who has predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (single child): $100,000 (1/3), Grandsons (brothers): $50,000 ea (share 1/3).

Texas Will Forms

Note: Before making a Texas Last Will and Testament, we recommend you research vital information on preparing, signing and witnessing a Last Will and Testament including:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents):
Texas Will Form: Married with adult children
Texas Will Form: Married with adult and/or minor children, includes a trust for minor children
Texas Will Form: Married with no children

Texas Will Form: Single with adult children
Texas Will Form: Single with adult and/or minor children, includes a trust for minor children
Texas Will Form: Single with no children

Self-Prove a Texas Will

The affidavit must be evidenced by a certificate, with official seal affixed, of such officer attached or annexed to the Will. §59

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