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Blogs from July, 2023

Types of Wills in Texas: Which Is Best for You?

Anyone who wishes to have control over the distribution of their assets and properties after their passing should have a will in place. Regardless of the size of your estate, having a will can help avoid potential disputes and ensure that your loved ones are taken care of according to your wishes.

However, choosing the right will for your Texas estate—not to mention your family and loved ones—can be a stressful ordeal for everyone involved. There are many types of wills to choose from in Texas, making it all the more important to select the most appropriate type of will when planning for your future.

Keep reading to learn more about the various types of wills available to Texans and their families.

What Is a Will?

A will is a legal document that sets forth an individual's wishes regarding the distribution of their property after death. Wills are a key component during the probate process, the court-supervised process to verify the authenticity of the will and approve it as the true last testament of the deceased.

The personal representative (“executor”) named in the will is given legal authority by the court to administer the estate. This includes tasks such as gathering the deceased's assets, paying debts or taxes, and distributing the remaining property as specified in the will.

Keep in mind that not all assets are subject to the probate process—only assets owned solely by the deceased usually go through probate. In most cases, jointly owned assets or those with designated beneficiaries, such as life insurance policies and retirement accounts, aren’t required to go through probate in Texas.

Although probate offers a standardized means to ensure the orderly distribution of assets, it can also be a lengthy and costly process, often lasting anywhere from several months to a year or longer. The efficiency of the probate process is typically dependent on unique factors, including the size and complexity of the estate, the efficiency of the executor, and whether there are any disputes over the will.

Types of Wills in Texas

There are various wills that Texans can choose from when planning their estate. State law recognizes several types of wills, each serving different purposes depending on your unique circumstances. These include:

  • Holographic Wills – These are handwritten wills that are written and signed by the testator. Witnesses aren't required for holographic wills in Texas, but they must be entirely in the testator's handwriting.
  • Simple Wills – This is the most common type of will. Simple wills are typically typewritten and can include provisions for asset distribution, appointing an executor, and guardianship.
  • Wills with Testamentary Trusts – These wills establish a trust that comes into effect upon the testator's death, allowing for asset management and distribution to beneficiaries over time.
  • Pour-Over Wills – These wills work in conjunction with living trusts, allowing assets not already in the trust to "pour over" into the trust upon the testator's death.
  • Reciprocal Wills – Also known as "mirror wills," these are nearly identical wills made by spouses, leaving their assets to each other and then to the same beneficiaries.
  • Joint Wills – This type of will is created and signed by multiple parties, often spouses, and is binding on all parties. It is less common due to its inflexibility.
  • Contractual Wills – These wills are made as part of a contract between the testator and another party, such as a caregiver or a charitable organization.
  • Electronic Wills – Texas allows for the creation of electronic wills, which are executed and stored electronically in compliance with specific legal requirements.
  • Living Wills – Also known as advance directives, living wills express an individual's medical treatment preferences if they become incapacitated and cannot communicate their wishes.

Legal Requirements for a Valid Will in Texas

In Texas, specific legal requirements must be met to establish a valid will. The person making the will (“testator”) must be at least 18 years old, of sound mind, and under no undue influence or duress. The will must be written and signed by the testator or another person at the testator's direction and in their presence. It also must be attested by at least two credible witnesses over the age of 14 who sign the will in the testator's presence.

Do All Wills Have to Go Through Probate?

Probate is the legal process of administering a deceased person's estate, including validating the will (if there is one), identifying and inventorying assets, paying debts and taxes, and distributing the remaining assets to beneficiaries or heirs. While not every will is legally required to go through probate in Texas, the necessity for probate depends on the type of assets involved, their value, and how they are titled.

In Texas, some assets may pass outside of probate and directly to beneficiaries, bypassing the probate process. Generally, these assets include:

  • Jointly Owned Assets – Assets held in joint tenancy with rights of survivorship or as community property with rights of survivorship will pass directly to the surviving joint owner.
  • Assets with Beneficiary Designations – Certain assets, such as life insurance policies, retirement accounts (e.g., 401(k)s, IRAs), and payable-on-death (POD) or transfer-on-death (TOD) accounts, allow the account holder to designate beneficiaries. These assets go directly to the named beneficiaries upon the account holder's death.
  • Assets in Living Trusts – Assets held in a revocable living trust generally avoid probate because the trust continues to exist after the grantor's death. The successor trustee can manage and distribute the assets according to the trust's terms.
  • Small Estates – In Texas, estates with a total value of $75,000 or less (excluding homestead and exempt property) may qualify for a simplified probate procedure called “small estate affidavit.” This process is generally more straightforward and faster than regular probate.

If the decedent's estate includes assets that exceed the total value of $75,000, probate is likely required. During probate, the court oversees the administration of the estate to ensure the deceased person's debts are settled and their assets are distributed according to the terms of the will (or intestacy laws if there is no valid will in place).

It's imperative to consult with a trusted Texas probate attorney to understand how your assets will be distributed upon your passing and whether probate will be required. Proper estate planning can help Texans utilize strategies to minimize the assets to undergo probate and simplify the process for their loved ones following their death.

5 Advantages of Having a Will in Texas

Having a will can offer many advantages to Texans and their loved ones. Some common benefits of having a will in place include:

  1. Enhanced control over your estate and assets. You decide who gets your assets and property.
  2. The ability to protect any minor children. You can name a guardian for your minor children.
  3. The power to appoint an executor. You can nominate a trusted person to manage your estate.
  4. The ability to keep familial conflict to a minimum. By clearly stating your wishes, you can help prevent potential disputes among family members.
  5. The opportunity to restore your peace of mind. Knowing that your affairs are in order can give both you and your loved ones peace of mind, closure, and clarity moving forward—no matter where life takes you.

Having a will is essential regardless of the stage of life you’re in. Understanding the different types of wills available can help you make an informed decision about what's best for you and your loved ones.

Compassionate Advocacy in Life’s Toughest Seasons

It can be challenging to prepare for a future without you in it. Still, it's essential for Texans to take the necessary legal steps to safeguard their estate and ensure their loved ones are cared for following their death. At Crain & Wooley, our exclusive focus on estate planning empowers our compassionate attorneys to serve Texas families throughout DFW, helping them put a plan in place to protect their assets and care for loved ones. From tax planning to retirement planning, our trusted advocates have the in-depth knowledge to ensure that your hard-earned assets and family members remain protected for many years to come.

It can be hard to plan for the future. Our compassionate lawyers can restore your peace of mind. Call (972) 945-1610 to schedule a consultation.