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.

What Happens to an Irrevocable Trust When the Grantor Dies?

It’s no secret that estate planning can be a confusing area of U.S. law. From choosing a will to tax planning, preparing for and understanding the probate process can be overwhelming for many Texas families.

While it can be easy to assume that trusts are only necessary for wealthy or influential people, this isn’t true. A trust is an invaluable mechanism when it comes to Texas estate planning. It’s important to understand the types of trusts available to make the best decisions for yourself, your estate, and your loved ones during the estate planning process.

What Is an Irrevocable Trust?

An irrevocable trust is a type of trust that cannot be changed, modified, or revoked without the permission of the beneficiary or beneficiaries. This takes effect as soon as the trust is established by the “grantor” or creator of the trust. In other words, once the grantor transfers assets into an irrevocable trust, they effectively give up any right of ownership to those assets and the trust itself.

How Irrevocable Trusts Work in Texas

An irrevocable trust functions by transferring assets from the grantor's estate into a new legal entity (the trust). The trust then becomes the legal owner of the assets. The grantor will then appoint a trustee, who will have the fiduciary duty to manage the trust assets in the best interest of the beneficiaries as outlined in the terms of the trust.

Role of Grantors, Trustees, & Beneficiaries in Texas Trusts

Executors and trustees play different roles in estate planning that rarely overlap. While an executor is typically appointed in a will to manage the decedent's estate after their death, a trustee manages assets placed in a trust for the beneficiaries.

Can an irrevocable trust be modified or revoked after the grantor passes away? Understanding the roles of the executor, trustee, and beneficiaries is vital in comprehending the post-death process. Consider this brief overview of the various roles involved in irrevocable trusts:

The Grantor

The grantor of an irrevocable trust, also called the trustor or settlor, is the person who creates the trust. They establish the terms of the trust, including who the beneficiaries are and what assets are included.

In irrevocable trusts, grantors transfer assets and relinquish all rights of ownership to those assets, meaning the grantor no longer has control over them and cannot make any changes or amendments to the terms of the trust without the permission of the beneficiaries.

After the grantor's death, the assets in the trust are managed or distributed by the trustee according to the terms set out by the grantor in the trust document.

The Trustee

In an irrevocable trust, the trustee plays a vital role in managing and administering the trust assets to benefit the beneficiaries. The trustee is a fiduciary, meaning they are legally obligated to act in the beneficiaries' best interests and uphold the trust's terms and intentions.

Generally, the trustee’s responsibilities include asset management, distributing trust assets appropriately, keeping detailed and accurate records of all accounts and transactions, ensuring compliance with applicable tax laws, making investment decisions to preserve and grow the trust’s assets, treating all beneficiaries fairly and impartially, and complying with all state and federal laws to avoid any conflicts of interest.

When the grantor of the irrevocable trust passes away, the role of the trustee becomes even more crucial. Following the grantor’s death, their legal obligations can expand to include additional steps, such as:

• Notifying beneficiaries of the grantor's death and their status as beneficiaries
• Gathering necessary documents, such as the grantor's death certificate and any probate documents
• Settling the grantor's outstanding debts and taxes before distributing assets to beneficiaries
• Ensuring that the trust assets are appropriately titled and transferred to the intended beneficiaries

It's critical for trustees to seek sound counsel from a Texas trust attorney if they’re uncertain about any aspect of their duties after the grantor's death. The proper administration of Texas trusts is essential to protect the interests of the beneficiaries and fulfill the grantor’s wishes after they pass away.

The Beneficiary

A beneficiary in an irrevocable trust is the person or entity set to receive the benefits or assets from the trust. These benefits can include income from the trust's assets, property, or other forms of wealth as outlined in the trust agreement. Generally, the role of “beneficiary” includes:

• Receiving distributions –The primary role of a beneficiary is to receive distributions from the trust as specified in the trust agreement. This may include regular income payments, specific assets, or lump-sum distribution.
• Having the right to information –Beneficiaries have the right to be informed about the trust and its administration. They can request information on the trust's assets, terms, and how the trustee is managing the trust.
• Enforcing the trust –If the trustee does not manage the trust properly or fails to make distributions as the trust document directs, beneficiaries have the right to take legal action to enforce the terms of the trust.

Irrevocable Trusts: What Happens When the Grantor Dies?

Upon the grantor's death, the trustee continues managing the irrevocable trust or distributes the assets according to the trust’s terms. Unlike a will, an irrevocable trust avoids probate, often expediting the asset distribution process and making it an appealing option for some families.

When the grantor of an irrevocable trust passes away, the following steps and procedures are generally followed:

• Notification of death. The executor or a designated representative is responsible for notifying the trustee and beneficiaries about the grantor's passing.
• Obtaining the death certificate. The trustee will require a certified copy of the grantor's death certificate to prove their passing.
• Trust administration. The trust document outlines the specific instructions for trust administration. The trustee will take charge of managing and distributing the trust assets according to the terms outlined in the trust agreement.
• Inventory of trust assets. The trustee will conduct an inventory of all assets held within the trust, including real estate, investments, bank accounts, and personal property.
• Valuation of assets. The trustee may find it necessary to obtain professional appraisals to determine the fair market value of certain assets, especially if the trust requires equal distributions to beneficiaries.
• Notifying creditors. The trustee should publish a notice to potential creditors, allowing them a specific period to make claims against the trust for any outstanding debts owed by the grantor.
• Settling taxes and debts. The trustee must settle any outstanding debts, including taxes owed by the grantor or the trust, before distributing assets to beneficiaries.
• Asset distribution. Once all debts and taxes are settled, the trustee will distribute the trust assets to the beneficiaries as per the terms outlined in the trust document.

Turn to a Trusted Texas Probate Attorney

Our experienced trust attorneys proudly provide wise and compassionate representation to Texas families in the Dallas-Fort Worth area. We understand how emotional and complicated estate planning can be, which is why our firm is committed to helping our DFW neighbors navigate the complexities of probate law.

At Crain & Wooley, our seasoned lawyers fight to give Texas families the closure, clarity, and healing they deserve. From trusts to estate planning to wills, our compassionate lawyers have the comprehensive knowledge to guide your legal steps with wisdom and integrity, empowering families to maintain their peace of mind no matter what life throws their way.

Contact us online to learn how our experienced firm can help preserve your hard-earned assets and ensure your estate is handled according to your wishes.

Estate planning is necessary to ensure your loved ones are well provided for after your passing. The situation can become more complex when it comes to bequeathing assets to minors, as they do not have the legal authority to manage assets. It’s important to take proper considerations into account when including children in your estate plan, as well as the various strategies available to safeguard their best interests and secure their financial future.

RELATED: 5 Costly Estate Planning Mistakes to Avoid

Here is what to consider when bequeathing assets to minors in your estate planning.

Establishing a Trust

Creating a trust is an effective option to protect the assets of minors. A trust allows you to appoint a trustee responsible for managing the assets on behalf of the minor until they reach a predetermined age or meet certain conditions. A Revocable Living Trust keeps assets in your ownership, and only transfers to your beneficiaries upon your death. With a Trust, you specify terms to suit your wishes and meet your beneficiaries' needs, including setting up a distribution timeline, or planning for health and living expenses.

Custodial Accounts

One of the primary concerns when bequeathing assets to minors is the age at which they will gain control over their inheritance. In most states, the age at which minors can receive inheritance - called the age of majority - is 18, including Texas. You can leave your assets to your children or other minors before they turn 18, but if you pass away while they are still under the age of majority, they will need a custodian to manage those assets. One way to set this up is through custodial accounts, such as the Uniform Transfers to Minors Act (UTMA) or Uniform Gifts to Minors Act (UGMA) accounts. Your custodian will have the legal authority to make decisions about the assets until the minors come of age and can make appropriate decisions about their inheritance.

While custodial accounts offer a simpler alternative to trusts, they have some limitations. For instance, once the minor reaches the age of majority, they gain complete control over the assets, regardless of their financial maturity. Additionally, custodial accounts may have an impact on the minor's eligibility for financial aid when applying for college.

Conservator Guardianship

In cases where you don’t appoint a custodian, the court will appoint a conservator to manage the assets. While this option involves court supervision and added expenses, it is required if minors don’t have a designated custodian.

Speak with an Estate Planning Attorney

Managing your estate can be overwhelming, especially when considering your children's and other minors' well-being. When starting your estate planning it is best to contact an experienced attorney to help you make the right decisions for your and your family’s future. The team at Crain & Wooley has years of experience helping families plan for the unexpected and prepare strong legal strategies for their future.

Contact us at (972) 945-1610 and visit us online to learn what we can do for you.