Drafting a Will and preparing your estate can be difficult when you don't know the basic requirements of Texas law or where to find them. In this article, FastWill gives you the rundown on the most important things for Texans to know when planning their Wills, with citations to the legal codes for more information.
Probate in Texas
Probate in Texas refers to the legal process through which a deceased person's assets and estate are administered and distributed after their death. This process is overseen by the probate court system in Texas. The primary purposes of probate in Texas are:
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Validating the Will: If the deceased person (referred to as the "decedent") had a valid Will, the probate court examines and confirms its authenticity. The court ensures that the Will was properly executed and that the decedent had the legal capacity to create it.
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Appointing an Executor or Administrator: If there is a valid Will, it typically names an executor, who is responsible for carrying out the decedent's wishes as outlined in the document. If there is no Will, that means the person has died "intestate," and the court appoints an administrator to manage the estate. This individual is usually a family member or another interested party.
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Inventory and Appraisal: The executor or administrator is responsible for taking an inventory of the decedent's assets and obtaining appraisals where necessary. This step helps determine the total value of the estate.
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Payment of Debts and Taxes: Outstanding debts, taxes, and other liabilities of the estate must be paid from the estate's assets. This includes settling any valid creditor claims and fulfilling tax obligations.
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Distribution of Assets: Once debts and taxes are settled, the remaining assets are distributed to the beneficiaries or heirs as specified in the will or according to Texas intestacy laws if there is no Will. The court oversees this distribution to ensure it follows legal procedures.
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Final Accounting: The executor or administrator provides a final accounting to the court, detailing all financial transactions related to the estate's administration. This accounting should be transparent and accurate.
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Closing the Estate: After all necessary steps have been completed, including the distribution of assets and the approval of the final accounting by the court, the estate is formally closed.
It's important to note that not all assets are subject to probate in Texas. Some assets, such as those held in a trust, assets with named beneficiaries (e.g., life insurance policies, retirement accounts), and jointly owned property with rights of survivorship, typically pass outside of the probate process.
You can find the rules applicable to the probate process in the Texas Estate Code here.
Requirements for Texas Last Will and Testament
The provisions of Texas law that cover Wills are found in the Texas Probate Code. According to state law, a person must be 18 years or older or lawfully married or a member of the U.S. Armed Forces or auxiliaries or of the maritime services to make a valid Will. The person must also be "of sound mind" as that term is defined by Texas law.
For a Will to be valid under Texas law, the Will must be attested by two or more credible witnesses who are at least 14 years old. The witnesses must sign at the same time as the person making the Will. Holographic Wills, which are handwritten Wills, are legal in Texas. A person does not need witnesses to a handwritten Will in Texas. However, these Wills are frequently challenged.
Requirements for Texas Small Estate Affidavits
In Texas, some people may qualify for the Small Estate process, which allows a person to avoid probate when they leave no Will and the value of the probate estate does not exceed $75,000. To inherit under this process, a person must write a Small Estate Affidavit, which should be signed by two witnesses who will not inherit anything from the estate. You can find the applicable laws in Texas Estates Code 205.001
Guidance for Parents of Minor Children
Creating a Will is a crucial part of estate planning for parents in Texas, especially if they have minor children. A well-drafted Will can help ensure that your children are cared for and that your wishes regarding their guardianship and inheritance are carried out. Here are some general guidelines for what Texans with minor children should include in their Wills:
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Appointment of a Guardian: One of the most important aspects of a Will for parents with minor children is the appointment of a guardian. In your Will, you can specify who you would like to be the legal guardian of your minor children in the event that both parents pass away. Choose someone you trust and who is willing to take on this responsibility. It's a good practice to discuss this decision with the potential guardian beforehand to ensure they are willing to accept the role.
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Alternates for Guardian: It's wise to name alternates or backup guardians in case your first choice is unable or unwilling to serve as the guardian when the time comes. Life circumstances can change, so it's good practice to have alternatives.
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Trustee for Minor Children's Inheritance: If you intend to leave assets to your minor children, you might want to consider a trust. With a trust, you designate a trustee who will manage and distribute the inheritance on behalf of your children until they reach a certain age or milestone, such as turning 18 or completing their education. The trustee can be the same person as the guardian or a different individual, depending on your preferences. Texas trusts are governed by Subtitle B of the Texas Statutes.
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Temporary Guardianship: While the legal process for appointing a permanent guardian plays out, it's a good idea to name a temporary guardian who can provide care for your children in the immediate aftermath of your passing. This temporary guardian can step in until the permanent guardian is appointed by the court.
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Regularly Update Your Will: As your family circumstances change, such as the birth of additional children or changes in your relationships, it's crucial to update your Will to reflect these changes. Review and update your will periodically to ensure it accurately represents your wishes.
Make a Texas Will Online
If you live in Texas, be sure that you understand the law and follow the instructions to ensure your will is legally binding. FastWill can help you make an online Will that follows the Texas Statutes.
