Texas Wills & Estate Planning

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Of all estate planning documents, the Will, also known as a Last and Testament, is often regarded as the kingpen. A Will is a major tool in estate planning. Having a Will can save you money. Having a will can ensure your wishes are carried out. However, a Will is just a part of an overall estate plan, like a piece of a puzzle.

Do I need a Will?

If you own property (not just real estate), having a will is a good idea because a Will controls where your property goes “the disposition.” If you die without a will, simple things, such as transferring title of a car, can involve the courts and become costly.

Do I need a Will if I am married?

Your spouse does not inherit everything you own at the time of your death by default. Because Texas is a community property state, and the “default will” in the Texas Estates Code can often produce less than desirable results.

Example Problem: If you are married with children from a previous marriage and die without a will, the following occurs under Texas law:

  • Your spouse would inherit ⅓ of your separate personal property (ie. a car, cash, etc.) and merely the right to use your real estate for their life.
  • Your children inherit everything else, including your ½ interest in community property.

What happens if
I die without a Will?

If you do not have a Will, the State of Texas has one for you as mentioned above. The following negative consequences could occur:

  • More expense in administering an intestate (without will) estate;
  • The court would have to appoint:
    • An administrator (opposed to an executor); and/or
    • A guardian if a minor child inherits;
  • Final wishes may not be carried out;
  • An 18 year-old child could inherit a substantial amount of money with no restrictions;
  • Potential family disputes
    • Ie. Two family members fighting over an heirloom because each claim you had told them it was theirs.

What does a Will do?

Legally speaking, a Will “disposes” of “the probate estate.” This means the Will controls who gets (“disposes”) property that you hold in your name at the time of death (“the probate estate.”)

In a Texas Will, you can:

Some examples of what a Texas Will can do are:

  • Give specific items to people (specific bequests);
  • Leave an animal to someone;
  • Leave property to a charity;
  • Leave property to a trust; and
    • Including a contingent trust that can prevent young or minor children from inheriting large sums of money without supervision.
  • Designate a guardian for your children; and
  • Insert a clause to discourage people from challenging your wishes.

With a Texas Will, you cannot:

Because the following are not within the probate estate, the Will will not control:

  • Accounts payable on death;
  • Property held in joint tenants;
  • Retirement accounts;
    • 401(k)
    • IRA
  • Life insurance policies; and
  • Property in trust

What is probate?
Should I avoid probate?

Probate is the official legal process through which a Will is proven valid. Unlike other states, probate in Texas is generally not a lengthy or costly procedure as long as your Will designates an independent executor - which most Wills do.

With an independent executor, probate is generally not:

  • Costly;
  • Lengthy; or
  • Burdensome

There are ways to avoid probate, for example, various types of trusts can avoid probate. However, even with the use of trusts, probate may be necessary for property which is not within a trust.

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