What is a Will and Do I Need One?
For most people, executing a Will is a simple and effective method of ensuring that their estate will be distributed as desired. Wills can vary in complexity depending on the size of the estate and the desires of the individual, from simple Wills that leave an entire estate to a spouse, children, or other loved one to lengthy documents that create multiple trusts and specific distribution instructions. The type of Will that you need, depends on your desires and the size of your estate.
In Texas, there are two types of recognized Wills, the holographic Will and the formally executed Will. Each type has its own specific legal execution requirements. If the Will is not executed according to the law’s requirements, then the Will may not valid. The holographic Will is one which, along with other legal requirements, must be written and signed in the persons own handwriting. The formal Will, can be typed, but must be signed by not only the person executing the Will, but also by two competent witnesses, along with other legal requirements. Texas no longer recognizes oral Wills.
In addition to the execution requirements, there is also a competency requirement for the person executing the Will. The person must understand the effect of making the Will, must understand that he or she is actually executing a Will, must understand the general extent of the persons estate, and must generally understand who are the person’s next of kin. If somebody attempts to execute a Will without meeting this competency requirement, the Will may not be valid.
In addition to executing the Will itself, one can also execute a self-proving affidavit for either a holographic or formal Will. The self-proving affidavit does not change any provisions of the Will. It is used to simplify the process of “proving up” the Will in court after a person dies. Without the self-proving affidavit, at least one witness must testify as to the handwriting or execution of the Will. When a self-proving affidavit is executed, the affidavit itself replaces the need to find such a witness.
What happens if somebody dies without a will?
If somebody dies without a Will, then the probate laws of the state decide who inherits the person’s estate. The estate is distributed according to a statutory scheme. The particular distribution of an estate, when there is no Will, varies from person to person depending on that person’s particular family situation. An attorney could determine what would happen if somebody died at a particular time, but this may change in the future if the person’s family situation changed. The statutory scheme for distribution may or may not be the same as what somebody desires. Executing a Will is the way to ensure that the estate is distributed according to one’s own wishes.
Are there other documents , besides a Will, that can be used for planning purposes?
Living Will or Advanced Directive – provides people with the ability to designate what their preference would be if he or she, for whatever reason, ended up on life support. If a doctor determined that the only thing that is keeping a person alive is life support, the individual can designate whether or not to have the life support disconnected.
Nomination of Guardianship in the Event of Incapacity -provides for the nomination of a guardian in the event that a person becomes incapacitated. Often, due to the degree of incapacitation, the incapacitated person gets little say as to who will be that persons guardian. This problem is avoided by nominating a guardian before any incapacity occurs. This ensures that the individual’s opinion is heard during the process of establishing a guardianship.
Medical and General Powers of Attorney – allow a person to designate who can make both health, financial, and personal decisions for that person. The powers can be either broad powers, which cover a wide range, or narrow powers, which limit authority to specific types of decisions or events. The powers can also be made to be effective for a specific time or to become effective upon a particular event. One of the advantages of executing heath and medical powers of attorney is that, with proper planning, they can be used to avoid the appointment of a guardianship.
This website is provided for informational purposes only and use of the information does not create an attorney client relationship. Each person’s factual situation and legal situation is different. Therefore, each person should consult an attorney for an analysis of his or her own situation.