For most people, making a last will and testament, known commonly as a will, is the first step in creating a comprehensive estate plan. A will can ensure that the heirs you want to inherit your property do so, but it can also accomplish other critical goals. Without a will, you not only lose control of who inherits what, your family may end up in bitter disputes with one another after your death. It’s important to work with an experienced attorney who can review your estate planning needs and then develop a customized last will and testament that meets them. Trust the dedicated counsel of Capstone Legal Strategies.
What Is a Will?
Most people have some idea of who they want to inherit which piece of property they own after they pass away. A last will and testament can specify, in detail, the exact wishes of the testator (the person who makes the will). But a last will and testament can be used to achieve several estate planning objectives. They include:
- Control over Distribution: Perhaps the most obvious purpose of a will is to designate the testator’s intended heirs for his or her property and assets and the division thereof.
- Naming an Executor: You can name not only the executor of your estate but one or two alternate executors in the event the first or second one is unable to or disqualified from serving.
- Designate Guardianship: If you have minor children, your will can state your preferences for who should become the guardians of your minor children if you die before they reach adulthood.
- Minimize Family Conflicts: Clear instructions in a will can help reduce the likelihood of disputes among family members over your estate. By stating your intentions clearly, you can minimize potential conflicts and ensure your wishes are respected.
- Provide for Specific Bequests: A will allows you to make specific bequests to individuals or organizations, such as family heirlooms, charitable donations, or gifts to friends. This ensures that sentimental or valuable items are passed on according to your wishes.
- Tax Planning: In addition to handling your estate assets, you can provide instructions for how outstanding debts and taxes of your estate will be paid and for those with larger estates, utilize tax planning strategies to minimize tax liabilities for heirs.
- Disinheritance: In rare cases, an individual may want to disinherit a person who would otherwise be an heir under state intestacy statutes. This can be accomplished through the proper drafting of a will.
What Are the Requirements For a Valid Will?
While anyone can draft their own will, it must abide by certain legal requirements to be valid. If it isn’t, your wishes might not be upheld by the probate court that is responsible for determining what happens to your estate. An experienced estate planning attorney can help ensure these requirements are met:
Legal Capacity and Sound Mind
Generally, the testator must be at least 18 years of age to have the requisite legal capacity to execute a will. Additionally, the testator has to be of sound mind, which means he or she has the ability to understand:
- The fact that he or she is making and executing a will
- The legal effect of making a will
- The nature of his or her estate property
- The individuals who are the natural objects of his or her bounty (i.e. relatives)
- The fact that the will disposes of his or her assets
- How all of these elements form an estate plan to dispense with one’s property
Testamentary Intent
The language used in the will must express how you want your property to be distributed after your death. The more specific details that are included, the better.
Writing
There are two types of written wills that the State of Texas recognizes:
- Handwritten: A handwritten will is valid, but it has to be completely written in the testator’s handwriting. It must also be signed by the testator. If this approach is used, there is no requirement that witnesses or a notary sign the document. However, the presence of witnesses and a notary better ensures authenticity, which is the advantage of the second type of handwritten will.
- Typewritten: This is the form that most individuals would likely recognize and which Capstone Legal Strategies would draft for you. To be valid, a typewritten will must be signed in the presence of a notary and two credible witnesses over the age of 14.
Is Notarization Required?
Texas law does not require a last will and testament to be notarized, but most lawyers will include this step to produce what is called a self-proving affidavit to the will. A self-proving affidavit is a sworn statement that the witnesses and the testator must sign in the presence of a notary public. This affidavit provides presumptive evidence that the testator signed the last will and testament in accordance with state law. Including it can validate the will, saving your estate time and expense.
What Happens If I Die Without a Will?
If you die intestate – meaning, without a will – then the distribution of your assets to your heirs will be subject to a statutory set of rules. Texas’ intestacy statutes include detailed steps for who inherits what from the estate of the person who died. The main problem is that you would have absolutely no say over who gets to inherit from you. In effect, individuals you may not have intended to inherit would get to do so, and in percentages that are set by law. This is likely to create strife among your surviving relatives as they fight to inherit what they want of your assets.
You would also have no say over who is appointed to manage your estate, who in this case would be called the administrator rather than the executor. Without any guardianship instructions that would be included in a will, a guardian would also need to be appointed to care for your minor children. This individual may be someone you would not have chosen.
To ensure that you have control over your estate assets and other important matters, be sure to execute a valid will.
Contact Our Houston Last Will and Testament Attorney
A last will and testament helps preserve your legacy, pass on assets to your heirs, and care for your loved ones. It is an essential component of an estate plan and should be used along with other instruments like trusts and powers of attorney. The team at Capstone Legal Strategies can discuss all of these documents and how they can effectuate your individualized estate plan. Reach out to us today to get started.