Texas Wills, Trust, and Probate

Drafting the documents and instructions for a good estate plan can be a distressing process. Some of the typical documents that comprise an estate plan are a will, durable power of attorney, trust, advanced care directive, or healthcare surrogate designation, depending on your situation. It is important to update your will often, especially upon the occurrence of life altering events (marriage, childbirth, divorce, incapacity), regardless of your age or monetary situation. Talk to a Texas probate lawyer about your estate plan.

Texas Will

Your will must be worded precisely as Texas law prescribes in order to be valid. Failing to correctly word your will may result in an undesirable distribution of property. The following formalities must be met in order to satisfy Texas probate law and create a valid will:

1. Witnesses: A will in Texas must be signed and attested by two witnesses over age 14 in the presence of the testator. The testator must sign the will in the presence of the witnesses. If a witness is also a beneficiary to a will, the bequest is void.
2. Notarization: Texas requires that in addition to the signatures of two witnesses, your will be notarized. If a will is not notarized in Texas, the will is invalid.
3. Holograph: Texas permits holographic (handwritten) wills so long as they are entirely in the testator’s handwriting and signed by him.

In Texas, your will is considered self-proving if the two witnesses who signed the will, and the testator sign an affidavit that affirms that the testator properly signed the will in the presence of the two witnesses and stated that the will is his last will and testament. Attaching a self-proving affidavit to the will creates ease in the probate process because it means that the witnesses to the will do not have to appear in court to attest to the will. Locating witnesses to a will, sometimes after passing years and death can be a difficult process. Find a Texas probate lawyer to help you comprehend the legal elements required for a valid will in Texas

Changing a Will in Texas

In Texas, you have several options if you seek to change your will:

1. Set down in writing, “I revoke my will; or,
2. Make a new will that completely revokes the old will; or,
3. Amend your will using a codicil and attach the codicil to the will itself; or
4. Physical destruction of the will

Whichever way you choose to change or revoke your will, you must make sure that you do so in accordance with Texas law. For example, you should have two witnesses present at the signing of the will, proper phrasing, and notarization to ensure that a Texas court will admit your will to probate.

Texas Trust

Trusts provide a confidential and adaptable means of transferring your property after death. Texas permits several different types of trusts, such as charitable, life insurance, educational, and inter vivos (living) trusts. A trust may be revocable or irrevocable and will allow you to save on taxes and evade the probate process.

Setting up the kind of trust that is best for your situation is not always easy. A Texas estate planning lawyer can provide you valuable advice.

Texas Probate

Distributing property by “intestate succession” means that when someone in Texas dies his property is dispensed as set forth in Texas law. Generally, this means that the property goes to the people who have the closest blood relationship to the deceased. Dispensation by intestate succession only occurs when the testator dies and does not specifically leave his property to particular people in his will.

Whenever the deceased’s property is distributed by intestate succession or the will is ambiguous, Texas probate courts allow any person who could benefit from the will to petition the court to clear up these matters.

An “independent executor” is a unique creation of Texas probate law. A testator may designate an independent executor (the person who manages the will upon the testator’s death) in his will. This allows the estate to be executed with less cost and more ease than the general probate process would allow.

The following groups of people may hold an interest in property passing by intestate succession in Texas:

1. Spouse
2. Descendants – children, grandchildren
3. Half-Bloods
4. Parents
5. Brothers and sisters
6. Grandparents
7. After-born heirs
8. Adopted Persons, children born out of wedlock

• Not all assets pass through the probate process. For instance, contract assets payable to a particular person (including insurance policies, inter vivos trusts and IRAs) and property owned jointly by the deceased and by other parties that passes automatically to the other parties at the deceased’s death, will not be distributed through probate. Further, property specifically allocated to certain people in a will or trust passes directly to those people. You should consult a Texas probate lawyer about any questions or concerns.

Texas Statutes

Texas Statutes, Estates and Trusts

1. Probate Code: Estates of Deceaseds
   • Texas Probate Code, Chp. V, Part 1, § 72.
2. Probate Code: Intestate Succession
   • Texas Probate Code, Chp. II, § 37.
3. Probate Code: General Provisions
   • Texas Probate Code, Chp. 1, § 1.
4. Probate Code: Administration of Estates
   • Texas Statues, Chp. VIII, § 248.
5. Texas Trusts
   • Texas Property Code, Tit. 9, Chps. 101-123.