No one likes thinking about the end—whether it’s divorce or death, us humans would rather focus on what’s happening now, than prepare for something that feels like it will never come.
The problem is, unlike divorce, death is a certainty, and when the Reaper finally does come, he isn’t going to send along a Save the Date so you have time to prepare. It will probably happen suddenly, leaving you very little (or no time at all) to get your affairs in order.
That’s why we think it’s so important to draft a simple will, now, so that your loved ones don’t have to guess what you want, later on.
Here’s what a simple will looks like in Texas, and how the Neal Ashmore team can help you address these important, end of life matters.
What is a Simple Will?
A simple will (also known as a “last will and testament,” or, more commonly, a “will”), is an official legal document that stipulates what you want to have happen to your assets—including real and personal property—once you die.
In drafting this document, the person creating the will is called a “testator,” and the person (or people) who inherit property are called “beneficiaries.” Simple wills also appoint an estate “executor,” who is in charge of making sure the terms are carried out correctly.
A last will and testament is not legally required. Similar to getting divorced without a prenuptial agreement, Texas legislatures have a process for dealing with the property of individuals who die without a simple will.
However, just as a prenuptial agreement can make things a lot easier for divorcing couples, a last will and testament simplifies the probate process, making things as painless as possible for your loved ones, and ensuring that your wishes are carried out properly.
What Should a Simple Will Include?
In Texas, there is no set formula for how to draft a simple will. However, most of these documents will:
- Identify the testator;
- Indicate that the testator is of sound mind;
- State who the beneficiaries are;
- State what each beneficiary will receive;
- Name an executor;
- Be signed by the testator; and,
- Have at least two witness signatures.
In addition to these elements, a testator must also have legal and testamentary capacity. Without them, the will isn’t valid, and Texas courts are not obligated to uphold the terms of an invalid will.
What is Legal and Testamentary Capacity?
Legal capacity essentially just means that you’re old enough to make a contract. In Texas, the easiest way to meet this standard is to turn eighteen.
If you aren’t eighteen, you might still have legal capacity, if you are:
- Lawfully married; or,
- You are a member of the United States armed forces.
Once you’ve met the legal requirements, you must also have testamentary capacity. In legal speak, this means that a person is mentally aware enough to know what they are doing.
According to Texas law, this means that the testator understands:
- What a will is;
- That they are making a will;
- The nature and extent of their property;
- That they are disposing of this property;
- Who they are disposing property to; and,
- How all these elements work together to form a plan for their assets, after death.
When a person signs a will with all these boxes checked, the court calls this “testamentary intent.” When testamentary capacity and intent meet at the same time, you have all the necessary ingredients for a sound mental decision.
Is There a Filing Limit?
Yes. In addition to legal and testamentary capacity, a will must be filed within a certain time limit. Texas probate law puts this time limit at four years after the testator’s death. If you do not file a will within that four-year window, probate court will not recognize the will.
This time frame ensures that the family has plenty of time to locate and file a testator’s will, without holding the court hostage by the hypothetical whims of the deceased.
What Happens if I Die Without a Will?
A person who dies without a will dies “intestate,” and if this happens, you don’t need to worry—in fact, you’ll be in good company. By most estimates, only 50%-60% of U.S. adults have a will (with some surveys putting it as low as 40%).
If you die intestate, your property will not simply disappear, or get donated to the state. Instead, the Texas Probate Code takes over, and your assets will be divided amongst your closest surviving relatives.
Usually, this means giving property to the surviving spouse and children, with the spouse receiving one-third of personal property, and the children dividing up the remaining two thirds. (Real property, on the other hand, stays under the ownership of the surviving spouse, until he or she also passes.)
If you don’t have a surviving spouse or children, the next person in the hierarchy line will qualify, and the next, and so on until the court finds a suitable heir.
Which, naturally begs the question: if Texas already has rules to deal with a person’s property, after death, then why bother with a will, at all?
Why Would I Want A Will?
Probate law is great, but it has its short-comings. Hence, even though your property won’t disappear into the ether, once you die, there are still a lot of reasons you might want to put your wishes down in a last will and testament.
For example, a simple will allows you to:
- Give property to people who aren’t related to you;
- Donate money to charities or organizations;
- Divide property between multiple beneficiaries;
- Stipulate how much you want each beneficiary to receive;
- Disinherit relatives you don’t like;
- Choose a guardian for your minor children;
- Save your heirs the hassle of going through probate court; and,
- Save your estate money on taxes.
Bottom line? Probate law is standardized, and doesn’t take your personal preferences, favorite people, and arch nemeses into account. Meaning, the only way to really insure that your property is handled the way you want, is to have your attorney help you draft a will.
Simple Will Attorneys in Texas
It’s easy to put off death when you’re young, and it feels so far away. The problem is, we don’t actually know if it is far away. Tragedy can strike at any time, which is why it’s so important to prepare for them, now.
If you have more questions about drafting a simple will, and what you need to do to put your affairs in order, then Neal Ashmore wants to help. Call our team today at (972) 436-8000, or schedule a consultation online, and together, we can make your probate wishes official.