A will is a legal document that chooses who will distribute your property and assets (the Executor), who will receive your property and assets (the beneficiaries), and who will provide for any minor children (the guardian(s)). Why have a will drafted for you? A properly drafted will allows for the smooth distribution of assets and property while avoiding costly taxes, penalties, and future legal fees.
There are two types of wills in Texas. The first type of will has four procedural requirements to be a valid will in Texas: One, the Testator (or Testatrix) must be at least 18 years of age, married, or serve in the armed forces. Two, the will must be signed by the Testator. Three the will must be signed by two witnesses. Four, the witnesses must be at least 14 years of age, and they must sign it in the Testator's presence. The second type of will accepted in Texas, a holographic (handwritten) will, requires the document be wholly in the Testator's handwriting, signed by the Testator, and the intent of the document to be the Testator's final will. Holographic wills may involve higher court costs and more disputes about the distribution of assets and property, while a written will that follows the procedure above is much more likely to avoid costly litigation or court costs.
Distribution of property and assets can be cumbersome. Texas law helps this issue by allowing an independent executor to handle the estate of a Testator. Most people should have an independent executor of their estate written into their will. An independent executor will have minimal contact with the court for specified issues (diminution of title being one of them), but otherwise will be able to see after your affairs without court supervision. An independent executor allows for minimal court costs and the most freedom from the court system.
Furthermore, every will should have a self-proving affidavit. Texas courts accept self-proving affidavits, which create a legal assumption that the four requirements of the will are met, and also the Testator had the capacity to create a will, and intended the will to be the final will. A self-proving affidavit lowers the court costs normally associated with probating (or the process of validating and presenting to the court) a will.
What if someone dies without a will? A person who dies without a will is said to have died intestate. The property and assets would be divided according to intestate, or the state of Texas, laws. These laws can have a much different effect than the person would have preferred for the distribution of assets and property.
What if you already have a will? A will should be reviewed periodically for a couple reasons. First, a person may have new family members (children, grandchildren, etc.) they wish to include in their will. Second, Texas wills, trusts, and estate law changes from time to time, and it is important to ensure that your will follows all current Texas law so it continues to be a valid legal document in Texas.
In summation, if you are over 18, married, or serves in the armed forces and have sufficient assets or property to warrant a will, you should give strong consideration to creating a will. If a person dies intestate, property and assets may not distributed in the manner the person would prefer. If your already have a will, it is a good idea to have it reviewed annually. Contact your attorney today for more information on Texas wills, trusts, and estates.
Charlton M. Messer, Attorney at Law
This article is for informational and educational purposes only. Please contact your attorney today to find out more about Texas wills, trusts, and estates.
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