What is a will?

A will is a testamentary document providing precise instructions on how the testator wants his/her property distributed after the time of his/her death.  Because a will is a testamentary document, it is not operative before the testator passes away.  A will may also appoint an executor of the testator’s estate, revoke a previous will, designate a guardian for the testator during the testator’s lifetime, and/or disinherit an heir. 

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Estate Planning in Houston Texas - What You Need to Know

Who can make a will?

In Texas, a person of sound mind who is at least 18 years old (or married, or in the armed forces) has the right and the power to make a will.

Why do I need a will?

1. To leave instructions on how you want your estate distributed.
2. To designate a guardian for your minor children.
3. To protect the interests of your children from a previous marriage.
4. To make specific gifts to family and friends who survive you.
5. To conserve the estate’s resources (i.e. save money) and avoid extra probate attorney fees.
6. To reduce the likelihood of bickering among heirs.
7. To give your family peace of mind.

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What happens if I die without a will?

Many people assume that if they die without a will (e.g., “intestate”) that all their property and possessions automatically pass to their family and loved ones.  Alternatively, some people believe that if they do not leave a will that all their property and possessions will pass to the State of Texas (i.e., “escheat”).  Neither of these beliefs is accurate.  Texas law has no “laughing heir” statute – this means that the if you die intestate that Texas law provides that your heirs will inherit from you no matter how distantly related they may be.  Basically, property escheating to the State is a last resort. 

Texas law of descent and distribution governs how property passes if you die without a will.  The precise distribution of your assets can be found under Sections 38 and 45 of the Texas Probate Code.  Essentially, these are a set of default rules to distribute your estate if you fail to leave instructions. There are default rules for a single person and for a married person due to issues of community property.

For example:

If you are married and fail to leave a will, your probate assets will pass as follows:

Where any person having title to any estate, real, personal or mixed, other than a community estate, shall die intestate as to such estate, and shall leave a surviving husband or wife, such estate of such intestate shall descend and pass as follows:

1. If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.

2. If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.

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If you are unmarried and fail to leave a will your probate assets will pass as follows: 

Where any person, having title to any estate, real, personal or mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course:

1. To his children and their descendants.

2. If there be no children nor their descendants, then to his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.

3. If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.

4. If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course: To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.

The structure of the default rules may not provide for an individual’s wishes.  For example, in Texas if you wanted to leave money or property to your half-sibling, with whom you are close, but did not leave a will, Texas law makes the assumption that you only want to leave your half sibling ½ as much as you would leave to your whole sibling.  Another example, if you wanted to leave money or property your step-child or foster child, these default rules do not provide any inheritance to such persons. 

Bottom line, although the default rules provide a reasonably good framework for distributing your probate assets, your property may not be distributed like you would want it to be. 

Additionally, probating your estate with no will requires significantly more time before the probate court, court intervention in the estate, and more court and attorney fees.  All of these additional expenses are deducted from your estate.  That means your heirs will likely receive less of an inheritance. 

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What are the two most important things my will should do and why?

1. Designate an executor to administer your estate
2. State that the executor should serve without bond

Designating an independent executor (one who serves without bond) is critical to saving your estate money.  Once the executor qualifies he/she may begin distributing your estate without further court intervention or supervision.  The executor will also not have to obtain a surety bond to protect the estate.  If there is no executor, then the court must find someone who can qualify.  Additionally, if the will does not specifically state that the executor may serve without a bond, then the court must determine the value of your estate upon the date of your death and a named administrator must obtain a surety bond for that amount.  This is an expense that must be paid by your estate.  The court will require a surety bond to protect the estate and the heirs from fraudulent or negligent acts of the administrator. 

I’m single with no children.  Do I really need a will?

Yes, because you have more than you think!  Even though any life insurance policies and retirement accounts you have may have a payable upon death (POD) beneficiary, you may still have probate assets such as your vehicle, home, land, mineral rights, stocks, or significant personal property such as antiques or jewelry.  Though some of the personal property in your estate may not be exceedingly valuable, it may have great sentimental value. 

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Can I write my own will?

Yes.  This is called a “holographic will.”  A holographic will is one written in the testator’s own handwriting and is not witnessed.  Essentially, you may write your will on anything you want with any writing implement you want – just keep in mind whatever you choose will go before the court and taken into custody.  In Texas, holographic wills have been written on many odd items such as a nurse’s petticoat, the back of a used envelope, on a dresser drawer, and on the fender of a tractor.  (Sometimes a person on his/her death bed doesn’t have pen and paper readily available). 

There are drawbacks to a holographic will.  First, the drafter may not meet the legal requirements of showing testamentary intent.  Also, a family trying to prove up a holographic will before the court will need to bring two witnesses to court who are personally familiar with the testator’s handwriting and who can swear under oath that the will is actually in the testator’s handwriting. 

The Jolly Testator Who Makes His Own Will

-Lord Neaves, Judge and Solicitor General – Edinburgh, Scotland

circa 1852

Ye lawyers who live upon litigants’ fees,

And who need a good many to live at your ease,

Grave or gay, wise or witty, whate’er your degree,

Plain stuff or Queen’s Counsel, take counsel of me:

When a festive occasion your spirit unbends,

You should never forget the profession’s best friends;

So we’ll send round the wine, and a light bumper fill

To the jolly testator who makes his own will.

He premises his wish and his purpose to save

All dispute among friends when he’s laid in the grave;

Then he straightaway proceeds more disputes to create

Than a long summer’s day would give time to relate.

He writes and erases, he blunders and blots,

He produces such puzzles and Gordian knots,

That a lawyer, intending to frame the thing ill,

Couldn’t match the testator who makes his own will. 

Though the poem is over 150 years old, it still rings true. Lawyers make lots of money in legal fees cleaning up the unintended mess often made by a testator who drafts his or her own will. 

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If I’m on my death bed, can’t I just tell my family and loved ones what my wishes are?

Yes, Texas law provides for oral wills (i.e., “nuncupative wills”) under extremely limited circumstances.  In addition to limited circumstances, oral wills must meet very strict tests:

1. Oral wills are only applicable to personal property.  That means that the testator cannot dispose of land or titled property verbally
2. An oral will can only be made during the testator’s last sickness and at his/her home. 
3. If the value of the personal property is greater than $30, then there must be three (3) or more credible witnesses to an oral will
4. An oral will cannot be probated more than six months after the testator’s death, unless the testimony of the substance of the oral will was committed to writing within six (6) days after the making of the oral will. 

What is probate?

Probate is the legal process after a person has died. A more detailed definition of probate is the legal process by which a decendent’s will is authenticated before a court of proper jurisdiction.  There are 7 crucial steps to probating a will in any state, though details vary between states. The probate court first decides if a valid will exists, then appoints an executor or administrator. The executor, often a friend or family member, must complete the 7 crucial probate steps, and properly prepare and file all of the legal, accounting, and other court papers.  Lawyers are often hired by the executor to assist in completing the steps necessary to probate a will.

Seven Crucial Probate Steps

1.  Identify, collect and protect the deceased's assets

2.  Notify creditors per state law, pay all uncontested creditors at the correct time, and contest claims that appear wrong

3.  Inform the Social Security Administration, insurance companies, credit card companies and others about the death

4.  File all required papers with the probate court, including inventory and appraisal forms, formal accounting, and other legal documents. Obtain court order for distributing the estate

5.  File the decedent's final tax returns, and pay taxes owed

6.  Determine who inherits the property.  If this is not clear in the will, investigate further and file legal proceedings

7.  Supervise final distribution of assets to the heirs, obtain court receipts, attend a court hearing, and obtain court order discharging the executor from further responsibility

What is a Durable Power of Attorney?

A Durable Power of Attorney is a document which names an authorized agent or “attorney in fact” to conduct business and/or legal matters on your behalf.  You may wish to have a durable power of attorney in effect so that a spouse or family member can handle certain things for you when you are unavailable, out of town, disabled or incapacitated. Some examples include:

·        Real property transactions;

·        Tangible personal property transactions;

·        Stock and bond transactions;

·        Commodity and option transactions;

·        Banking and other financial institution transactions;

·        Business operating transactions;

·        Insurance and annuity transactions;

·        Estate, trust, and other beneficiary transactions;

·        Claims and litigation;

·        Personal and family maintenance;

·        Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service;

·        Retirement plan transactions; and,

·        Tax matters.

A durable power of attorney is only effective while the person is alive.  The durable power of attorney ceases to be effective once the person passes away.  This is why it is important to have a will designating an independent executor. 

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What is a Medical Power of Attorney?

A medical power of attorney is a legal document that gives the person you name as your agent the authority to make health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself.  Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment.  Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion.  A physician must comply with your agent’s instructions or allow you to be transferred to another physician.

Your agent’s authority begins when your doctor certifies that you lack the competence to make health care decisions.

Your agent is obligated to follow your instructions when making decisions on your behalf.  Unless you state otherwise, your agent has the same authority to make decisions about your health care as you would have had.

The person you appoint as agent should be someone you know and trust.  The person must be eighteen (18) years of age or older or a person under eighteen (18) years of age who has had the disabilities of minority removed.  If you appoint your health or residential care provider (e.g., your physician or an employee of a home health agency, hospital, nursing home, or residential care home, other than a relative), that person has to choose between acting as your agent or as your health or residential care provider; the law does not permit a person to do both at the same time.

What is a Living Will?

A living will is a legal document governed by the Advance Directives Act found in the Texas Health & Safety Code.  Though most people refer to this document as a living will, the official legal name for the document is the Directive to Physicians and Family or Surrogates.  This document is used to provide instructions to your physicians and family as to how to proceed if you should fall into an irreversible, persistent vegetative state.  It is different than just designating one’s code status either in or out of the hospital (e.g., DNR or do not resuscitate).  A recent and dramatic example of the consequences of lacking a living will is Terri Schiavo. 

In this document, you elect whether you wish to receive full life sustaining treatment, such as a ventilator, nutrition, and hydration, or if you prefer to be kept comfortable and allowed to pass away without the assistance of heroic life sustaining treatment or medical devices. 

You may wonder how this is different form a medical power of attorney.  The two documents work together, but the living will makes a clear declaration to your medical providers and your family as to your wishes should you be in an irreversible, persistent vegetative state.  No loved one wants to be faced with the emotional and overwhelming decision regarding the discontinuation of life support.  However, if the person makes and advanced directive, this removes a tremendous amount of pressure from the loved ones. 

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How often should I update my will?

Any time you experience a significant event in your life such as the birth of a child, adoption of a child, marriage, or divorce.  A well drafted will should last you a lifetime, but you may need to execute a codicil from time to time.  A codicil is a supplement to a will which may contain an addition, explanation, or modification of the terms of an existing will. 

What if I want to disinherit a family member?

For whatever reason, you may wish to cut a child, sibling, parent or other family member off from inheriting from your estate.  It is best to acknowledge the relationship in your will and leave a very small bequest to this individual, such as an amount of $10.00.  In the event the disinherited person wishes to contest the will, the bequest is evidence that you did not merely forget this person.  Under no circumstances should your will include references as to why you wish to disinherit the person.  Sometimes there are very emotional reasons for disinheriting a person, but putting this information in your will, which becomes a public document, can lead to lawsuits against your estate for testamentary libel.   

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