Whether it’s divorce or dying, us humans aren’t fond of endings. Rather than hypothesize about the bad that might be lingering down the road, we’d much rather spend our time focusing on the good that is happening right now.
Unfortunately, while a lot of things in life are uncertain, death isn’t one of them. Which is exactly why it’s so important to prepare for it now, rather than wait to be blindsided by it, later on.
By drafting a last will and testament, you not only ensure that your wishes are carried out the way you want them to be, but you also make the transition easier for the ones you leave behind.
Here’s what you need to know about a last will and testament in Texas, and how the Neal Ashmore team can help you with these sensitive, end of life decisions.
Last Will and Testament: 101
To begin, a last will and testament (often shortened to just a “will”) is a legal document, which outlines how you want your property distributed and your affairs settled, once you die.
Under these circumstances, the person drafting the will is called the testator; the individuals who inherit are beneficiaries; and the person in charge of carrying out the will is an executor. Parents of minor children should also name a guardian, who will be responsible to care and nurture the children in their parents’ absence.
Where executors and guardians are concerned, it’s always a good idea to include backup names in your will, just in case the original party is unable to accept the responsibility.
What Can a Last Will and Testament Do?
There are plenty of good reasons to draft a last will and testament. In Texas, some of these benefits allow you to:
- Subvert standard estate laws;
- Choose your own executor;
- Choose your own beneficiaries;
- Direct property where you want it to go, and by how much;
- Leave your property to an organization (instead of a person);
- Name a guardian for minor children;
- Create a trust for minor children; and even,
- Outline other personal matters, such as your funeral arrangements.
A last will and testament can be revoked or amended at any time, meaning you have the peace of mind in knowing that your wishes will be carried out, no matter what happens.
Not the Same Thing as a Living Will
A last will and testament is not the same thing as a “living will” (sometimes referred to as an “advanced directive”).
The former is an estate document meant to handle your affairs, once you die. The latter answers important questions about what you want to have happen in a medical emergency, and cannot speak for yourself.
Whether because of a car accident, sudden coma, or other illness, a living will communicates your wishes about life support, sustaining persistent vegetation, and other emergency treatment while incapacitated.
How to Draft a Last Will and Testament
In order for your will to be valid, it has to meet a few requirements. In Texas, a last will and testament is accepted only when:
- It’s in writing.
- You are at least eighteen years old.
- You are of sound mind and memory.
- Your will is freely, and voluntarily drafted.
- You sign in the presence of two credible witnesses.
Here’s a closer look at each of these requirements.
1. In Writing
This requirement doesn’t mean that you have to handwrite your will (although that’s an option). Instead, it simply means that your will must exist in a physical form (such as word docx or pdf), which can be signed and submitted to probate court.
Unlike other states, Texas does not recognize video or audio recorded wills. That being said, it’s not a bad idea to video yourself signing your will, if you’re worried about being accused of an unsound mind.
2. Over Eighteen
In Texas, your will isn’t valid, unless you’re over eighteen. (Meaning, that the will you drafted in second grade to disinherit your little brother won’t work.)
The only time Texas courts won’t enforce the age requirement, is if you are already married, or are serving in the military. Individuals can join the military at age seventeen, and—in Texas—get married as young as fourteen, as long as they have parental consent (though we really don’t recommend that… high school is hard enough, already, people).
Regardless, Texas legislatures figure if you’re old enough to fight for your country, and/or get married, then you’re also old enough to draft your own last will and testament.
3. Sound Mind
A person who is “of sound mind and memory,” is someone who:
- Understands what a will is;
- Understands the extent of their own property;
- Understands what a beneficiary is; and,
- Is capable of making judgements about what a will controls.
Essentially, the court wants to know that you have the mental capacity to understand what this document does, and how it will affect the people you list, upon your death.
4. Free and Voluntary
This one is straight forward. A will is not valid if the testator was forced, coerced, threatened, or cajoled into drafting it in any way. If the court believes that someone did, in fact, exert improper control or influence over the testator, they may revoke all or part of a will, as a result.
5. Two Credible Witnesses
Finally, in order to make things official, your will must also be signed in the presence of at least two “credible witnesses.” According to the Texas estate code, a witness is “credible,” if they are:
- At least fourteen years old; and,
- Won’t benefit from your will.
These two witnesses must also be physically present for the signing. In addition, the witness signatures, themselves, must be done in the presence of the testator, and in the witness’s own handwriting.
If all of these steps are fully executed, then probate court will most likely approve the document as a validly executed last will and testament.
What Happens if I Die Without a Last Will and Testament?
A person who dies without a last will and testament is called “intestate.”
When this happens, probate court will simply divide your property and assets according to standard estate laws. In Texas, this usually means surviving spouse and children first, and then on to parents, siblings, and other descendants, as needed.
All in all, there’s nothing wrong with allowing your property to pass, intestate—it’s just not a very personalized way to go. (Meaning you won’t be able to guarantee that your arch nemesis of a sibling doesn’t end up with all your money).
That being said, if you are a parent, then having a last will and testament is a lot more critical. Because the care and comfort of your child is something you probably shouldn’t leave up to the discretion of the court.
Last Will and Testament Attorneys in Texas
The uncertainty of death is scary—and not just for you, either, but for those you leave behind, as well. However, that’s exactly why it’s so important to think about these decisions now, while you know you still have time.
To hear more about drafting a last will and testament, or for other probate questions, we want to hear from you. Call Neal Ashmore today at (972) 436-8000, or schedule a consultation online, and let us help you navigate these important decisions.