A will is a document which controls the passage of title to your property upon your death. Most people benefit from a will. A will allows for easier distribution of your estate, and is generally less costly. This is your opportunity to determine what happens to your property when you die.
A will may be an attested or formal will which is in writing and witnessed by two or more people; or it may be an holographic will which is in the testator’s handwriting and signed by the testator. There are several important provisions that should be in a will:
(1) an exordium clause that identifies the testator, establishes domicile, declares and publishes the will, and revokes all prior wills;
(2) an introductory paragraph identifying family;
(3) a paragraph identifying property being disposed of;
(4) appointment of an independent executor;
(5) a waiver of the requirement for an executor to post bond; and
(6) a residuary estate clause.
If you die without a will, then your property will be distributed according to the laws of the State of Texas. This does not mean that your property goes to the state. Often this is a longer process and more costly.
It is important to include several ancillary documents in your estate plan:
•Statutory Durable Power of Attorney;
•Medical Power of Attorney;
•Directive to Physicians (aka “Living Will”);
•Declaration of Guardian for you and your minor children;
•Disposition of Remains;
•Agent to Control Disposition of Remains;
•Declaration for Mental Health Treatment; and
•Hospital Visitation Authorization (for unmarried couples).
It is critical to read these documents carefully to make sure that they express your wishes, and to consult with an attorney to make sure that the documents are consistent and work together for your benefit.
In drafting your will, you should consult an attorney to ensure that it achieves your goals and that it complies with Texas law. If you are considering using a “Do It Yourself” kit, there are common pitfalls that may arise
•Your “form” may not be a valid will under Texas law. If your will is determined invalid, then your estate will be distributed according to the laws of the State of Texas.
•These forms may not provide the type of planning that will benefit your estate, e.g., tax and trust planning.
•These forms may leave out certain language or provisions that will allow for a more efficient probate of your estate.
It is crucial to keep your will updated. Probate laws change and tax laws change periodically. The will you have planned this year may not accomplish your goals in 5 or 10 years from now. Your situation changes over time. Often, we end certain relationships and begin other relationships, as in the case of divorce, remarriage, adoption, or relocation. Prior wills may not account for these life changes.