What is a Last Will and Testament?

A Last Will is an official document outlining how individuals want their assets distributed when they are gone. It lists individuals or organizations entitled to a share of the deceased person's estate. Before making a Testament in Texas, a testator needs to understand how the rules apply. To validate a testament in Texas, the following conditions must be met:

• Age and mental capacity: The testator must be of legal age (18 years or older) and good mental health as of the time of making the Will
• Signature: The testament must be signed by the testator or a representative in the presence of witnesses
• Witnesses: The Will must be witnessed by at least two individuals who are non-beneficiaries of the estate and are 14 years or above
• Writing: A holographic wilI must be handwritten in the testator's handwriting and does not require the witnesses to sign it. However, the testator and at least two notaries must sign an attested will for it to be valid.
• Intent: The document must express the testator's (and no one else's) wish on how the estate should be distributed to the beneficiaries after the owner's demise.

Note: a Texas last Will does not need to be signed by the testator to be valid if it is a Holographic Will, but an Attested Will must be signed by the testator and at least two witnesses. Also, beneficiaries of a will may include a person, entity, state, governmental agency, charitable organization, or trustee of a trust entitled to receive part of the estate under the conditions outlined by the Will.

Last Will and Testament vs Living Will: What’s the difference?

A Last Will and Testament outlines how a person's estate will be distributed after death. On the other hand, a Living Will (Advanced Healthcare Directive) specifies an individual's preferences regarding end-of-life medical treatment when they are not physically or mentally capable of making decisions on such matters. Generally, a Last Will comes into effect after the testator dies, in contrast to a Living Will that may become effective while the testator is still alive.

Who Can Make a Last Will and Testament in Texas?

To create a valid Last Will in Texas, the testator must be 18 years or older or be a member of the United States armed forces. In addition, the individual must be of a sound mental health to:

• Understand the effects of making a Will
• Know the extent of the assets in the estate
• Understand who benefits from the estate
• Know how a Last Testament affects the distribution of assets.

Why Would You Need a Last Will and Testament in Texas?

There are several reasons for having a Last Will and Testament. In Texas, having or not having a Last Will is important for the following reasons:

Benefits of Having a Last Will

• Peace of mind: A Last Will assures that affairs are in order and loved ones will be taken care of after the demise of the testator
• Express the deceased's wish: Last Will ensures that a deceased person's estate is distributed to beneficiaries according to the testator's wish.
• Special Requests: A testator can include special requests in the testament. For instance, a Will can mandate the creation of a trust or donate to entities unrelated to the deceased.
• Tax Efficiency: Having a Last Will helps minimize estate taxes if asset transfers are done in an efficient manner
• Guardianship for Minors: For individuals with underage children, a Testament can set up a guardianship and ensure that their interests are protected
• Avoidance of Disputes: A last Will will specify the beneficiaries of a deceased person's estate and avoid controversy among interested parties irrespective of their relationships with the deceased.

Potential Risks of Not Having a Last Will

• Intestacy: In Texas, in the event of death, a deceased person's assets go to the next of kin. If the deceased does not have a living relative, the estate goes to the Texas State, and this may not be the deceased's wish.
• Unintended Inheritance: A deceased person's estate may go to a person whom the deceased may not wish to inherit the estate
• No Guardianship: In the absence of a Will, the Texas State, through the court, may appoint a guardian whom the deceased may not have preferred
• No Charitable Donations: Without a Will, there may not be an opportunity to leave a legacy through donations to charity
• Family Disputes: Not Having a Will can lead to controversy in the distribution of assets among family members or relatives
• Delays and Increase in Costs of Disposing the Estate: Without a Will, the state will appoint an executor to oversee the affairs of the estate, and this may involve fee payments. Such actions may lead to delays and costs that may deplete the estate.

Examples of situations where a Last Will and Testament can be useful

A Last Will can help avoid the issues associated with:

• Business Succession
• Intestacy
• Donation to Charity
• Guardianship for Minor Children
• Distribution of Estate
• Provision for Pets after the death of their owners.

When does your Last Will and Testament take effect in Texas?

Texas Last Wills do not become effective immediately when the testator dies.

Upon the testator's death, the Last Will must be submitted to the probate court to determine its validity. If the Will is valid, the court appoints the executor named in the Will to carry out the distribution of the assets. Asset distribution must be according to the instructions in the Will. According to Texas laws, the executor or administrator of a deceased person's estate must notify the beneficiaries within 60 days of admitting a Will to the probate court.

How to Create a Last Will and Testament in Texas

The following steps is a guideline on how to create a Last Will and Testament in Texas:

Steps

• Gather information: Make an audit of assets and consider potential beneficiaries of the estate in the event of death. The assets may include real estate, financial accounts, personal belongings, and investments. Decide on what part of the estate goes to each beneficiary.
• Make a draft of the Will: Download a Last Will and Testament template online or use specifically designed software to create a will (include personal information and instructions on the distribution of the estate)
• Name an Executor: Choose a trusted individual to be the executor of the Will. The executor should be someone loyal and able to carry out the instructions of the testament to the letter.
• Notify the Witnesses: Inform the persons who will be the witnesses and fix a date for the signing of the Will. For a Last Will to be valid in Texas, it must be signed by the testator and at least two witnesses.
• Sign the will in the presence of the witnesses and have them append their signatures if it is an attested will.
• Store the Will at a safe location.
• Update the Will as needed (the testator can remove or add beneficiaries to reflect changes in circumstances).

Legal Requirements for Creating and Executing a Last Will and Testament in Texas

To create and execute a valid Last Will and Testament, Texas laws require that:

• A testator must be 18 years old or older
• The testator must be in good mental health and understand the consequences of creating a Will
• A Will must express the wish of the testator
• A Will must be witnessed by at least three persons aged 14 or older
• Wills must be in writing. A Texas Will written in the testator's handwriting does not require the testator's signature, but Attested Wills (typed Wills) must be signed by the testator and witnesses.

The costs of creating and executing a Last Will in Texas vary with the complexity of the Will. The following are potential fees that may arise in the process of creating a valid Last Will and Testament in Texas:

• Attorney fee: Although it is not necessary to engage the services of an attorney, it may be advisable to hire one under certain circumstances. On average, it may cost between $200 and $350 per hour to have an attorney create a Last Will and Testament in Texas. However, some attorneys charge flat rates, and the costs of services vary with the complexity of the Will.
• Software or Template Fees: If the Will is created using a template or software, there may be one-time payments for downloading the template or software
• Notary Fees: While this is not a requirement, the testator may have to pay fees to notarize the testament for authenticity
• Witness Fees: Some witnesses may demand payments for their time and services.

Preparing a Last Will and Testament: How to Write One in Texas

The following are the processes involved in preparing a Last Will and Testament in Texas:

• Persons seeking to write a valid Last Will and Testament in Texas must introduce themselves and declare that they are of clear mind and sound mental health
• Designate an executor to carry out the terms of the Will
• Specify the beneficiaries of the estate
• If there are minors among the beneficiaries, specify who will become their guardian in the event of death.
• Specify how debts, taxes, and funeral expenses will be handled
• Sign the Will in the presence of witnesses who are not among the beneficiaries of the estate. Also, the witnesses must sign the Will in the presence of the testator
• Store the Will in an accessible place and inform the executor and loved where to locate it.

To properly execute and record a Testament in Texas, the key steps involve:

• Written Documents: A valid Texas Last Will must be in writing (either holographic or typed), and must express the wish of the testator
• Testamentary Capacity: The testator must not be under duress and must be of sound mental health at the time of creating the Will
• Signatures: The Will must be signed by the testator
• Witnesses: For a Will to be valid in Texas, it must be witnessed and signed by at least two individuals who are non-beneficiaries of the estate and must be 14 years or over
• Self-Approving Affidavit: Although a Self-Approving Affidavit is not a requirement for a Will to be valid in Texas, having one may help speed up the probate process by eliminating the need for the witnesses to give testimony in person. In the event of the death of a witness or a witness cannot be located, a self-approving affidavit is sufficient evidence
• Safekeeping: keep the Will in a safe location
• Inform relevant parties: The executor and beneficiaries should know the location of the will for easy access when the need arises.
• Recording of the Will: While this is optional, it may be a good idea to record the Will with the county clerk's office for additional protection against loss or destruction.

How often must I update my Last Will and Testament?

Factors that may necessitate updating a Last Will and Testament in Texas

There are no legal requirements on the number of updates on a Last Will and Testament. However, there may be a need to update Wills due to new circumstances.

Several factors may necessitate the need for an update on a Last Will and Testament, and these include:

• The birth or death of a beneficiary or the executor may necessitate the need for an update
• Change in Texas laws relating to probate matters, marital status, birth of children or adoption
• Change in financial status, loss, or acquisition of assets.

Legal requirements for updating a Last Will and Testament in Texas

In Texas, updating a Last Will and Testament involves revoking the previous one and creating a new Will. Hence, to update an existing testament in Texas, a testator must:

• Revoke the previous Will: The new Will should explicitly state that it revokes and codicils the previous testament
• Have testamentary capacity (be of a sound mind), have intent, and know the consequences of updating the Will
• Properly execute the new Will by signing it in the presence of witnesses, the witnesses must also sign the Will in the presence of the testator. Also, the new Will can include a self-approving affidavit signed by the testator and the witnesses in the presence of notaries.

In addition, the testator should document the revocation by making copies of the previous Will, the updated version, and any related affidavits.

The previous and the updated Wills should be stored in a secure and accessible location.

Recommendations for reviewing and updating a Last Will and Testament

It is advisable to update Last Wills and Testaments regularly to reflect changes in status or developing circumstances. The following recommendations may help schedule a Last Will and Testament review:

• Set a timeframe for a review, choose a date, mark it on a calendar, and stick to the date
• Life-changing events such as marriage, divorce, birth of a child, adoption, or deaths of persons with direct involvement in the Will (beneficiaries, executor, or witnesses) present opportunities to update a Last Will
• Change in financial status, purchase, or sales of assets may necessitate an update on a will.
• Review the testament to see if changes in the Texas Estate Code, tax laws, or other legal laws may impact the will.
• Consider a review if there is a significant change in health status to ensure that healthcare directives and provisions for incapacity are up-to-date.
• If family dynamics change, review the Will accordingly. For instance, there may be a need to add or remove beneficiaries due to an improved or failed relationship.
• Changes in personal preferences are opportunities to update a Will to reflect the current values, goals, and wishes of the owner.

Do I Need a Lawyer to Create a Last Will and Testament in Texas?

No, it is not necessary to use an attorney to create a Last Will and Testament in Texas. However, while it is not mandatory, the service of an attorney may be crucial depending on the complexity of the Will. For instance, if the assets include large corporations, real estate in multiple states, assets under litigation or prenuptial agreement, or assets with existing tax liability, hiring an attorney may be the best option. Also, the appointment of a guardian for a child in a joint custody dispute case may require the services of legal professionals.

What’s the Difference between a Last Will and Testament, a Living Trust, and a Medical Power of Attorney?

Last Will and Testament, Living Trust, and Medical Power of Attorney are important official documents that convey the wishes of their owners. Wills, trusts, and medical power of attorney serve distinct purposes and come into effect under different circumstances. The table outlines the differences between the mentioned documents.

Can a Last Will and Testament Be Challenged?

Yes, Last Wills and Testaments can be challenged in Texas. In Texas, a Will can be challenged by:

• Beneficiaries of the Will who dispute its validity
• Disinherited persons either by omissions or through terms that specify their ineligibility to inherit
• Intestate heirs who will inherit under Texas intestacy law if the court invalidates the current Will
• Creditors to a deceased testator seeking payments for debts
• Executors or administrators of a Will if it is in the interest of the estate.

Per Texas Estates Code Sec. 256.204, interested parties have a 2-year timeframe from the date of probate to contest a Will. There are several grounds for challenging a Will in Texas, and these include:

• Lack of testamentary capacity
• Undue influence on the testator
• Fraud or deceit leading to an influence on the testator's decisions
• Forgery or tampering with the Will
• Improper execution
• Revocation of the Will by the testator before death
• Mistakes in the creation or execution of the Will.

To challenge a Last Will in Texas, follow the steps below:

• File a lawsuit with the probate court where the testator lived before death
• State grounds for challenge
• Serve notice of the lawsuit to all interested parties. This includes the executor, beneficiaries, and all heirs that may inherit under Texas intestacy law if the Will becomes invalid.
• Gather evidence to support the reasons for the challenge
• Seek mediation or negotiation to resolve the differences if possible
• If the case goes to trial (mediation and negotiation fail), provide evidence and make an argument to substantiate the reasons for challenging the Will
• Appeal the outcome of the trial to a higher court if the judgment is unfavorable and there are reasons to believe it is wrong.