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Where There's A Will, There's A Way

Monday, December 20, 2021

Adriana Fierro Rascon Staff Reporter (2021 – 2022)

Marcela Amaro

Staff Reporter (2021-2022)

What is a Will? A will is an official legal declaration by which property and personal assets are transferred upon a person’s death.¹ A will has no legal effect until it is admitted (“probated”) in court, which can only happen post-death.² Why Should I Make a Will? A will is a way for you to control the transfer of your assets to your loved ones upon your death, like real estate and personal belongings. A will can help ensure that your family and their rights are protected should something happen to you. For example, you can designate a person you trust to be the legal guardian of your minor children. A legal guardian will see that your children are taken care of and that their financial assets are protected. Most importantly, a will allows you to name a trusted person as your “executor.” An executor is responsible for carrying out the terms in your will, distributing your property to the designated beneficiaries, and settling your debts and liabilities. Having a will facilitates the probate process for your loved ones and distributing the assets of your estate will be as simple as submitting the proper documents to the court. Your executor has four years from the date of your death to file an application to probate your will. Ultimately, a will allows YOU to decide the fate of all of your hard-earned belongings and not a judge. If fear of future tax liability is keeping you from making a will, keep in mind that there is no estate or inheritance tax in Texas. This means that whoever you choose as your beneficiary will not have to pay a tax on the inheritance they receive from you.³ What Happens if I Die Without a Will? Dying without a will (dying “intestate”) means you do not get to decide who will inherit your assets (your estate).

In Texas, your estate will be divided in accordance with state law and your estate is likely to be tied up in a lengthy and expensive court process to the detriment of your loved ones. The laws on intestate succession depend on whether you were single, married, or had children.⁴ Most of the time, your estate will be distributed and shared amongst your heirs. Heirs include spouses, parents, children, aunts, uncles, nieces, nephews, and distant relatives. If you were married, your estate would most likely go to your surviving spouse, depending on the type of property and assets you left behind. If no heirs are found, your estate may become property of the state.⁵ As you can see, it is in your and your family’s best interest to prepare a will before you die. Doing so will allow your family to mourn your death without the stress of figuring how everything will be split or struggle to obtain access to your assets. What are the Requirements of a Valid Will? A will must meet specific requirements for it to be accepted by the court after your death.⁶ While the rules for making a valid will vary by state, in Texas, the requirements are as follows:

  1. The will must be in writing and in physical form. This can be done by writing the will by hand on paper or typing it on the computer and printing it.⁷

  2. The maker of the will must be at least 18 years old and of sound mind. Being of sound mind requires that the person making the will understand what a will is and its effects and capable of making reasonable judgments. Id.

  3. The will must be done freely and voluntarily. A will made as a result of undue pressure or threats is unlikely to be found valid by a court. Id.

  4. Both the testator and two disinterested witnesses must sign the will in the presence of each other. The disinterested witnesses must be over the age of 14. A person that receives a financial benefit from your will cannot serve as a witness. Id.

  5. Texas does not require that a will be notarized. However, notarization is recommended to avoid calling your two witnesses into court when it comes time to prove up your will.⁸

Frequently Asked Questions

Q: Does my citizenship status prevent me from making a will? No.⁹ While a noncitizen may not have the same rights as a citizen, as long as it meets the requirements, a court will accept your will regardless of your immigration status. Moreover, a noncitizen may also be designated as a beneficiary under a will.

Q: Do I need a lawyer to make a will? Not necessarily. However, like in all legal matters, it is recommended that you consult with an attorney if you have specific needs. There are various online services available that offer will preparation for a low cost or free.¹⁰ ¹¹ A couple of guides and examples on how to make a will are and When it comes time to probate the will with the court, it is highly recommended, and preferred by most courts, that an attorney be present to ensure the process is properly followed.

Q: Can I handwrite my will? Yes. Texas recognizes handwritten wills, also known as “holographic wills,” so long as every part of it is in your handwriting only.¹² No part of the will can be written by someone else or typed on a computer. Here are some tips if you plan to write your own will:

  1. Write legibly.

  2. Indicate that the document is your will.

  3. Include the names of your beneficiaries.

  4. Name an executor.

  5. Sign and date it.

Q: Can I change or revoke my will after making it? Yes. Life is constantly changing, and your will should be up to date with life developments such as marriage, divorce, or a new baby. You can revoke an old will by writing a new one and indicating that you are revoking the old one.¹³ It is recommended that you destroy any previous wills to avoid issues or challenges to your new will.

Sources ¹ Dallas County, Probate FAQ’s, (last visited Oct. 2, 2021). ² Id. ³ Chris Thompson, Inheritance Laws in Texas (Mar. 12, 2021), ⁴ Judon Fambrough, Where There’s No Will (Sept. 2016), ⁵ FindLaw, What Happens If You Die Without a Will? (Mar. 29, 2019), /what-happens-if-i-die-without-a-will-.html. ⁶ Texas Young Lawyers Association, Hacer Testamento O No Hacer Testamento, Template.cfm?Section=Folletos_Educativos&Template=/CM/ContentDisplay.cfm&ContentID=23639(last visited Oct. 2, 2021). Tex. Est. Code Ann. § 251.051. Tex. Est. Code Ann. § 251.1045. ⁹ Community Networker, La Importancia de un testamento, (last visited Oct. 2, 2021). ¹⁰ Houston Volunteer Lawyers, Why You Need a Will, (last updated July 13, 2021). ¹¹ FreeWill, Make my will, visited Oct. 2, 2021). ¹² Derick Lancaster, How To Write a Holographic Will, articles&Template=/CM/HTMLDisplay.cfm&ContentID=33860 (last visited Oct. 2, 2021). ¹³ FreeWill, Changing a Will, (last updated Mar. 3, 2021).



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