Our firm has written this short article to provide you with simple
information regarding Wills and Probate in Texas.
This article is not intended to substitute for legal advice
from a qualified attorney. If you have further questions, please call our
office.
What is a Will?
A Will is a legal document that allows you to decide how and to whom your
property will be distributed after your death.
Who can make a Will?
Anyone who is of sound mind and is at least eighteen years old can make a valid
Texas Will. Married people can also make a valid Will even if they are under the
age of eighteen.
Who needs a Will?
Almost everyone needs a valid Texas Will. The only exceptions would be people
who are not married and have no children and who do not leave a large estate.
Even for those people, there are advantages in making a Will to simplify the
disposition of the property you leave
Can I write my own Will?
Yes, but this can be very dangerous. The laws in Texas are quite strict
regarding what is and is not a valid Texas Will. If your "homemade"
Will is declared to be an invalid Will, your property may go to people you did
not want to have it. Remember, you will not be around to explain to the
Judge what you really intended.
What will happen to my property if I die without a Will?
If you die without a valid Will, the laws of the State of Texas will determine
who should inherit your property, and how much each person will inherit. These
laws (referred to as the laws of Descent and Distribution) can be complicated,
depending upon your family situation at the time of death.
What will happen to my children if I die without a Will?
If you should die without leaving a valid Texas Will, the Judge of the court in
which your estate is resolved will decide who should be appointed as the
guardian of your minor children. Normally the guardian would be the surviving
parent of the children, but it might be another relative or even a friend.
Again, it will depend upon your family situation at the time of your death, and
you won’t be there to give your opinion to the Judge.
What is Probate?
Probate is the process of a court establishing that a Will is valid and the
court then approving the final distribution of property and questions regarding
minor children.
A Texas Will must be submitted to the court for Probate within four years of
the date of the death of the maker of the Will.
Of course if a person dies without a valid Texas Will, the court will make
all decisions regarding property and minor children based upon the laws of the
State of Texas and on the Judge’s opinion regarding the best interests of the
children.
Is it expensive to have a lawyer prepare a Will?
A proper Will can be surprisingly inexpensive, especially if a husband and wife
prepare one at the same time.
The real expense usually is in dying without a valid Will. That can possibly
create a financial nightmare for the surviving family members. Almost everything
the family will have to do after a death is more expensive to do without a valid
Will. By spending a small amount of money now, you may save your family
thousands of dollars and hours of frustration and aggravation later.
What information do I need to give my lawyer?
Your lawyer will need your family details, such as your current marital status,
the names and ages of children, and other such information.
You then must choose a guardian. This is the person who will take care
of your children in case you and your spouse die before your children become
adults. The guardian will raise your children and manage their money.
You also decide who your beneficiaries will be. These are the persons
or organizations who will inherit your estate. Your estate
consists of all the property you own, both real estate and personal property
such as jewelry and automobiles. If you plan to leave property to your children,
you will need to decide at what ages the children will actually receive the
property they inherit.
Next, you must choose an executor. This is the person or institution
who collects your property, pays your debts and taxes and makes sure your
property is properly given to your beneficiaries.
What is a Living Will?
A Living Will (also known as a Directive to Physicians) is a legal
document that allows you to tell doctors and hospitals in advance that you do
not want to be kept alive on support systems if there is no hope of a recovery
to a normal life.
A Durable Power of Attorney for Health Care Decisions is a legal
document that allows you to designate an agent (usually a relative or a close
friend) to make health care decisions for you if you should become either
physically or mentally unable to make such decisions for yourself.
A Statutory Durable Power of Attorney is a legal document that allows
you to choose a person to make any non–medical decisions for you and to sign
your name to other legal documents. This is normally used when a person becomes
mentally or physically incompetent, but it must be prepared and signed before
that person becomes incompetent.
These three legal documents, together with a valid Will, will make life much
easier for your spouse, children, other relatives and close friends should you
become incompetent or die. Without these important documents, the loved ones you
leave behind will not only have to deal with their grief, but also with
unnecessarily complicated legal matters.
We have made every effort to provide correct information in this article.
However, it is impossible for a short paper such as this to provide complete
information regarding complex laws such as those relating to Wills and Probate.
If you have questions, you should consult with an attorney.
The statements here are general in nature. The facts in any particular
situation may alter their application or may involve other laws not referred to
here.
