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Will

The first document that every Texan needs is a Will. A Will is the document that lets you direct who receives your assets when you pass away. Without a Will, your assets pass under the laws of intestacy (a person who passes away without leaving a valid Will). To ensure your spouse, family and friends are protected and taken care of, it is important to have a valid Will.

A Will only takes affect upon your passing. At any time during your lifetime, you can amend or execute a new Will. After you execute a Will and once you pass away, a Will needs to be probated with the Court for it to become effective. A Will must also be probated within four (4) years after your passing or the laws in Texas treat the situation as if you did not have a Will. For more on the probating process, please contact a Probate attorney in your area.

Important Things to Consider and Decide:

  • In a Will, you must appoint an Executor. The Executor will be the person in charge of distributing the assets of your Estate under the terms of your Will. You will need to appoint backups in the event the first named Executor does not qualify, refuses to act in such capacity, or predeceases you.

  • If there are any beneficiaries listed in your Will who are minors (individuals under the age of 18), a Trust will need to be provided for them, since a minor beneficiary cannot inherit assets from an Estate. Instead, the assets you leave to the minor will be held in a trust for them until they reach legal age. The child can access some of the funds before they reach legal age for the use of their health, education, support, and maintenance—with the discretion of the Trustee. You will need to appoint a Trustee to manage this Trust and provide for backups in the event the person you have appointed refuses to act in such capacity or predeceases you.

  • If you have a minor child[ren], you will need to designate a Guardian. A Guardian will take on the responsibility of taking care of your child. The Court will have to approve the appointment of such Guardian, and the named Guardian will have to qualify. This person does not need to be the same person you have appointed as the Trustee of the Trust stated above. You will also need to appoint backups in case the first named Guardian does not qualify, refuses to act in such capacity, or predeceases you.

  • Lastly, your Will must bequeath all of your property. In your Will, you can have a section for specific bequest which states who gets specific items, such as “I leave my gold wedding ring to my daughter, Jane Doe.” or “I leave my house at 123 Address Dr., Somewhere, Texas 76543 to my friend, John Doe.” If you do not have any specific bequest and want your Estate to be divided in its entirety, you can state how you want it be divided, such as “I want everything to go to my Spouse, should he/she survive me. If they predecease me, I want everything to be divided equally between my children, Jack and Jill Doe.” In every situation or bequest, you will want to have a back up. If you state that you want your Estate to be split equally between individuals, but one of those individuals predeceases you, you must determine if you want their share to go to the surviving individuals or to the now deceased persons children (should they have any).

F.A.Q.’s

Why do I need a Will?

It is very important to have a Will so you can direct who gets your assets and Estate when you pass away. Without a Will, the laws of intestacy direct where your assets go and who they go to. Having a properly executed Will makes the probate process for your loved ones much easier. Without a Will, there are many more hoops that your heirs will have to jump through to administer your Estate.

What assets pass through a Will?

Almost everything you own passes through a Will, such as your house, car(s), bank account(s), and anything else you own that is classified as your separate and community property (I will explain what separate and community property is a little further down). However, there are some things that pass outside your Will, such as if you have a bank account that has a Pay on Death beneficiary (POD) listed or an account that you own jointly with another individual. There are certain assets that you be designated with POD or other types of beneficiaries that will allow those assets to pass outside of your Will.

What is Community Property and Separate Property? Why is the distinction important?

The distinction of community property and separate property applies to the property of an individual when they are married. Separate property is any property you own before you are married or receive during your marriage by inheritance or gift. Community property is any property you acquire while you are married. This includes income produced by separate property assets. (Not all income from separate property is community property; please see an attorney for the distinction.) The classification of these assets are important because if an individual passes without a Will (dies intestate), certain assets based on their classification dictates where and who those assets transfer to.

What happens if I do not have a Will?

When an individual passes away without a Will, their assets are distributed following the laws of intestacy. Every situation is different based on your family situation and the classifications of your assets. Please see the charts below for the division of assets based on classification and family situation.

1. Married Person with Child[ren]

Separate Personal Property

Separate Real Property

Spouses retains a 1/3 Life Estate in the property but all separate real property will be owned outright by decedent’s child[ren] or other descendants when surviving spouse dies.

Community Property (Child[ren] all from the same marriage)

If all the child[ren] are from the marriage of the surviving spouse, the surviving spouse gets 100% of the community property assets

Community Property (Child[ren] from outside the marriage)

If the Decedent has child[ren] from outside the existing marriage, the child[ren] take all of the Decedent's community property and the surviving spouse retains their 50%.

2. Married Person with No Children

Separate Personal Property

Separate Real Property (survived by bother parents)

If Decedent is survived by both parents

Separate Real Property (survived by 1 parent and siblings)

If Decedent is survived by one parent (mother or father) and siblings

Separate Real Property (survived by siblings)

If Decedent is predeceased by both parents but has siblings, the spouse takes 50% and the siblings take 50% in equal share.

Separate Real Property (no parents or siblings)

If Decedent is only survived by his spouse and has no parents or siblings that are alive, the surviving spouse takes all the separate real property.

Community Property

3. Unmarried Person with Child[ren]

Separate and Community Property

4. Unmarried Person with No Child[ren]

Separate and Community Property (survived by both parents)

If Decedent is survived by both parents.

Separate and Community Property (survived by 1 parent and siblings)

If Decedent is survived by 1 parent and sibling[s], the surviving parent takes 50% and surviving siblings take 50% equally.

Separate and Community Property (survived by 1 parent and no sibling[s])

Separate and Community Property (no parents and siblings)

There is a common misconception for married couples that everything you own will pass to your spouse, but as you see above, depending on your situation and the classification of your property, it can go a number of people. That is why it is best to have a Will, so you decide where and who your assets go to.