If the word "will" in a document makes you want to turn the page quickly, you aren't alone. Nobody likes to think about death, and since a will is a legal document specifying what you want done with your property when you die, it can raise issues. But writing a will is actually a manner of taking control of your life. It's a way of being sure that everything you have accumulated during your lifetime gets passed on when you die to those you love the most. A will can also name a trusted person to handle your affairs and get your will through probate. So, if you haven't written a will, it belongs on your "Do Soon" list. If you live in Texas, you'll find that the process is not too difficult.
What Is a Will?
The term will, as in "writing a will," can easily get confused with the term will, as in "where there's a will, there's a way." One is a legal document, the other a kind of intention or force of mind. But if you are willing to put together a will, the intention and the document come together nicely.
Why should you write a will in Texas? If you own nothing, it's hard to think of a good reason. But most of us don't pass through our lifetimes without owning something, whether it's a cottage or a mansion or just a small account in the bank. It's usually hard-gained and represents work you did that you are proud of. A will allows you to decide who gets the cottage and the Volkswagen, or the mansion and the Rolls after you take your final breath.
That is the purpose of a will. It is a legal document in which you name your beneficiary or beneficiaries, the person or people you want to benefit from the labors of your life. Sometimes this is family, sometimes a friend, or it can also be an organization fighting for a cause you believe in. But it is often a very different list than the people who take your property after death if you don't have a will.
If You Die Without a Will in Texas
If you die without a will in Texas, the court has no way to be sure of what you want to happen to your property. Your ex-spouse might claim you said she could have the car, but your mother might contradict this. The court cannot speculate about these matters. Unless you have written up a will, properly signed and witnessed or otherwise valid under Texas law, your property passes according to the intestacy law.
In Texas, if you die without a will, it is said that you die "intestate." Everything you own at death will be handed out to family members in the order established by the state's "intestacy" laws. The Texas intestacy law, like that of many states, puts your closest relatives at the top of the list, beginning with your spouse and any surviving children. If you die without leaving either, the property passes to your grandkids if you have any, or your parents. The list goes on to name other relatives, in increasingly distant order, including your brothers and sisters, aunts and uncles, grandparents, cousins, and on to your spouse's family. If no living relatives survive you, the state of Texas adds your property to the general coffers.
Before you decide this will work for you, you'll have to get a slightly longer overview of Texas inheritance law. For example, one good thing to know is that if you gift a sum of money to one of your kids, considering it an advancement of her inheritance, that is not taken into account if you die without a will. Say you gift one of your two children a sum equal to one-half of your estate, thinking that the other will inherit when you die. If you don't write a will, the first child gets one-half of the remainder of the property as well, effectively taking three-quarters of the estate.
And, note that under intestate succession, friends, roommates and significant others take nothing. Your property is more likely to pass to an aunt you haven't seen in 50 years than to the devoted person who cared for you during your last illness.
Making a Texas Will
If you want your property to pass in this manner, you are probably fine without a will. If you don't, it is time to take action. Making a will in Texas is not difficult, but there are certain hoops you have to jump through in order for the will to be valid.
First, let's talk about your state of mind. In Texas, you have to have legal capacity to make a will. This generally means that you are an adult (at least 18 years old, married or in the military) and have both testamentary capacity and testamentary intent. No matter whether you make an attested will or a holographic will in Texas, you must still meet these base requirements.
The famous "of sound mind" that works its way into television wills comes from the requirement of testamentary capacity. You have to understand that you are making a will, know what a will does, understand generally the property you own, recognize whether or not you have relatives, and realize that, by writing a will, you are determining who gets your assets when you die.
Testamentary intent is a slightly different animal. It means that by signing the will, you have the intention to make a legal document disposing of your property at your death. If you are just fooling around, or scratching things out, you do not have testamentary intent.
Texas Will Requirements
Now for the hoops. Texas requires that certain formalities be followed for a will to be valid in the state. These may seem annoying, but you must realize that it is to protect you, not to irritate you. Once you are gone, the court cannot check in to make certain that you wrote the document someone is putting forward as your will. The "hoops" are intended to give some type of proof that the will and the signature are yours. Different types of hoops provide this assurance in different ways.
Most wills in Texas are attested wills. These wills must be written wills. Usually, they are printed out, but you can also get a Texas will form and fill in the blanks if you want to. Just make sure you get it from a reliable place, like a law library or court, to be certain that it follows Texas will requirements.
An attested will must be signed by the testator, that is, the person making the will. If it's your will, you have to sign it or have someone else sign it for you, at your direction and in your presence. This must happen in front of two people who serve as witnesses to your testamentary capacity and your testamentary intent. These witnesses must be over the age of 14 years old. The court can call them in after your death, and ask them whether you were of sound mind when you signed the will, whether you knew that it was a will and that you intended to sign it.
You can avoid the court calling the witnesses in to testify by making a self-executing will, also called a self-proving will. To do this, all of the signatures, yours and those of the two witnesses, must be notarized. Bring in a notary to the will signing to accomplish this.
Holographic Wills in Texas
A holographic will is one that is completely written by the testator in her own handwriting. Many states do not allow these types of wills, but Texas does. The facts that you write the will out in your own hand and sign it are enough to convince a court of the authenticity of the will. A holographic will is valid without any witness signatures, and you can write it on any piece of paper including things like stationary. But note, any typewritten or printed words may not be incorporated into the will by the court.
If you want to write a holographic will in Texas, use some opening language to show the court you are writing it to dispose of property at death. Using the language “This is my last will and testament” is usually sufficient.