Wills

• Last Will and Testament
• Statutory Power of Attorney for financial affairs in the event of disability
• Medical Power of Attorney
• Directive to Physician
• Form and instructions for Texas Out-of-Hospital Do-Not-Resuscitate Order
• Forms for making gifts of personal property outside your Will
• A form for Codicils to make future changes to your Will
• Information to help guide your family in the event of your death
• A practical checklist: “Preparing for Death – How to Make It Easier on My Family”

We recommend reading the packet from start to finish before you fill anything out, so the terms below (executor, trustee, powers of attorney, bequests, and more) are familiar when you make your choices.

A Will only comes into force once someone dies. Most people in America are hospitalized before they die and often people are so sick that they cannot make their own financial or medical decisions. Every adult should have signed powers of attorney for financial matters and for medical decisions so that a trusted loved one can make decisions in the event of a coma or prolonged inability to function mentally.

Statutory Durable Power of Attorney

A durable power of attorney allows a person you select in advance to take care of your finances, property, and investments in the event that you can no longer handle your financial affairs yourself. A durable power of attorney takes effect only if you are incapacitated. Under Texas law, a person is considered to be “incapacitated” for the purposes of a durable power of attorney if a doctor’s examination finds that they are not able to manage their own finances. The doctor must provide a written statement certifying this finding of incapacity. Texas law provides a form for a durable power of attorney, but it is for finances only. This means that it only allows the agent you have selected to handle financial matters. It does not permit the agent to make decisions about the principal’s health care.

Medical Power of Attorney

A medical power of attorney allows you to select someone else to make health decisions on your behalf if you are incapacitated. You can limit or give unrestricted powers to the agent to make any type of medical decision, including ending your life. Alternate agents may also be selected in the event the primary agent cannot perform.

Directive to Physicians

The Directive to Physicians is also called the “Living Will.” It states that you do not want your life to be artificially prolonged by machines if there is no realistic chance of your recovery. This document allows you to make this decision now, while you are still able, instead of forcing the painful decision on your family if the time ever comes. If you are uncertain about filling out and signing a Directive to Physicians, you can always hold on to the form and fill it out later. Of course, the document is not effective until you do fill it out and sign it.

A person can divide his or her estate in many possible ways. The choices below are the options most (but not all) people select, depending on whether they are married or single. Our team will confirm the exact wording with you — or you can record your wishes now using the “Fill it out online” questionnaire.

If you are married

• Leave everything to your spouse, and if your spouse dies before you, then to your descendants (children, grandchildren, etc.).
• If you have step-children only: leave everything to your spouse, and if your spouse dies before you, then to your step-children, or to your descendants, or to another person you name.
• If you have children and step-children: leave everything to your spouse, and if your spouse dies before you, then to your children only, or to your children and step-children.
• If you have children and step-children: leave everything to your biological and adopted children only (not your step-children), and if your children die before you, then to your spouse.
• If you have no children or step-children: leave everything to your spouse, and if your spouse dies before you, then to any descendants you may have in the future, and if you have no descendants, then to a person you name.
• Leave everything to a specific person or persons you name.

If you are not married

• If you have children: leave everything to your children and descendants, and if all of your descendants die before you, then to a person you name.
• If you have no children: leave everything to a specific person or persons you name.

Your Will determines who gets your entire estate. You may die many years from now, so we cannot list now all of your future assets. So, the Will says basically “my estate goes to ________.” If you want to leave a specific item to a specific person, you need to include a specific bequest in your Will. For example, you may want to leave all of your property to your spouse and if your spouse is not living, leave it all to your children. But maybe you own a grand piano and no one in your family plays the piano except your nephew Pedro. Your Will can include a specific bequest of your piano and say, “I give, devise, and bequeath my Steinway piano to my nephew Pedro Martinez Brown.”

Your Executor is a person designated in your Will to handle the paperwork involved in the probate of your Will, the payment of your debts, and the distribution of your assets. Usually, an attorney represents your Executor, so you do not need to choose someone who knows a lot about the law or finances. It is best to choose someone you trust to be fair and diligently follow your wishes. Most people name their spouses as their Executor unless the spouse is older and/or disabled. Often people list one of their children, or perhaps a trusted, responsible sibling or friend to be their Executor. You should also designate a successor or “backup” Executor to serve in case the first person you designate cannot qualify as Executor for some reason.

If any of your estate is to be inherited by a minor child or young person, then you need to select a person to be the Trustee for the funds or property. Often, people just designate the person they selected to be their Executor to be the Trustee. If you die many years from now, some of your Estate could go to a grandchild or great grandchild, so do not assume a Trustee is not needed just because your children are all grown. You also need to decide if you want the Trustee only if the child is under 18, or maybe you think a young person might not make good decisions and so a Trustee is needed until age 21 or 25.

Your Will can let your loved ones know how or where you want your funeral conducted. Your Will can say that you want to be cremated, or that you want to be buried next to your parents or have “The Eyes of Texas” played at your memorial service.

A parent can designate a guardian for his or her children in the event the parent dies, but the decision on who to appoint as guardian is up to the judge. A parent’s choice is persuasive but not binding. The law presumes a child should live with a parent unless there is a strong reason why that would not be best for the child.

A Will transfers 100% of a single person’s property (except for a co-owned property, life insurance, and accounts with beneficiaries). A Will transfers 100% of a married person’s separate property and 50% of community property (except for a co-owned property and accounts/life insurance with beneficiaries).

Community property is all property acquired by both spouses during the marriage, including all cash, bank accounts, retirement, personal property, and real estate, unless it is considered separate property.

Separate property is property owned by a spouse before the marriage or acquired during the marriage by one spouse as a gift, an inheritance, or through some personal injury claims or lawsuit.

If a married woman’s Will says that her brother is to receive all of the woman’s estate, her brother will receive only her 50% interest in the community property house bought during the marriage. She can, however, leave her brother all of her shotgun collection that she inherited.

If you die without a Will, you do not get to decide who will inherit your money, real estate, property, belongings, insurance, and retirement benefits. Instead, your estate will be divided according to Texas law. Without a Will, your siblings and grandchildren will not likely inherit anything from you. Your estate could be tied up in a lengthy probate process involving a court-appointed attorney, filing fees, and a court hearing—all paid for with money taken out of your estate, reducing its value available to your heirs.

With a Will, you get to decide what happens to your property and who gets what part of your estate. The person you choose to be your executor sees to it that your property is distributed in the way you intended. If you are married and you die without a Will, your estate will be divided under state law depending on whether it is classified as separate or community property (see the Texas Property Law section above).

If you have children from a previous relationship and are now married, a Will is even more important. This is especially true if you have children with your new spouse. Also, a person without a Will leaves nothing to siblings, friends, charities, or grandchildren (unless the grandchild’s parent – your child – has died before you).

The probate process in Texas is faster and cheaper if you have a Will and it often makes it easier on your family when you die, because your wishes are made clear and your survivors have fewer decisions to make, and are less likely to argue with each other.

A Will can also state who you want to be the guardian of your minor children if you die, although your wishes are not absolutely binding on the court (and the other parent always is presumed to get the children unless there are really good reasons why he or she should not).

In summary, in Texas, as in most states, without a Will, your property is distributed to your heirs in a manner as defined by state law. If no relatives are found, the state gets to keep whatever property is involved. Heirs include your surviving spouse, children, siblings, parents, aunts, uncles, nieces, nephews, or cousins. With intestate succession, or the process of dividing your assets if you die without a Will, heirs have no say in the matter. The courts get to decide how the property will be distributed. The process can take months or years to play out, depending on the size of the estate.

The best way to proceed, before it’s too late, is to hire a lawyer to ensure your Will is legally written, properly filed, and easily accessible to your heirs.

Additionally, a power of attorney allows a person you select to make financial or medical decisions for you if you are medically incapable. If you are in a coma or on a breathing machine and sedated, someone may need to help the doctors decide on treatments and you will need someone to take care of your bills and financial affairs.

Most lawyers agree that it is better to have a simple Will than no Will at all. However, some people need to consider more detailed (and expensive) estate planning. Very complex family situations sometimes require meeting with a lawyer to design a unique, customized Will. The most common reason for complex estate planning is the desire to avoid estate taxes. Federal estate taxes apply to all assets of an estate over a certain “exemption” amount. Currently, the exemption as of 2024 is combined gross assets for an individual exceeding $13.61 million and $27.22 million for a married couple. Unless Congress acts, the exemption goes back down to $5.49 million for individuals and $11 million for married couples after 2025. If your total estate (assets minus liabilities) is now, or foreseeably could be, over $13.61 million (or $27 million for a married couple) you should consult a qualified estate planner in addition to executing a simple Will.

The typed Will we prepare for you is not effective until you sign the Will before a notary public and two witnesses, all three of whom sign the Will too. We also ask you to initial each page of your Will.

Texas law makes the probate process relatively easy and fast if a person dies with a valid Will. Probate can take as little as 30 days if there is a valid Will and no disagreement between the heirs. Probating a Will in Texas begins by filing the original Will with the probate court in the county of the decedent’s residence at the time of his or her death. An Application for Probate is also filed with the appropriate court. The law then requires a 10-day waiting period before a hearing on the probate application starts. During this period, the county clerk will post notices to inform the public of the probate application. Absent any protest, the court will conduct a hearing to confirm the person is dead and that the Will is valid, and to appoint an Executor to handle distribution of assets. The Executor will receive official Letters Testamentary from the court that banks, retirement plans, and life insurance companies will recognize as giving the Executor the right to withdraw or distribute the funds. The Executor must inventory the estate within 90 days of the hearing, notify beneficiaries of the Will, post a notice to creditors, resolve debts, distribute property according to the Will, and file the decedent’s final federal income tax return.

Probate of an estate for a person with little property and no Will is also pretty straight forward in Texas and can be done in several ways depending on the property involved. However, probate without a Will is a good deal more complicated if one or more beneficiaries are under 18, or if there is significant property, or the heirs are in disagreement. These situations require a dependent administration supervised by the court, and so a lot more paperwork and lawyer time is required.

The words we use in a Will and the definitions of those words we select are very important.

The Will we will prepare for you will leave your estate to your spouse, or children, or specific persons whose names you provide us. However, if those heirs listed in your Will are not alive when you pass away, then the Will we create for you will leave your estate to your descendants. “Descendants” means your children related to you by birth or adoption and their offspring (your grandchildren, etc.). “Descendants” does not ordinarily include step-children who are not adopted. If you have step-children, you can leave them a share of your estate if you wish. A Will that leaves property to step-children will include step-children in the definition of “my children.” When your Will says that your estate is left to “my descendants [or children] who survive me per stirpes,” it means each of your children will get an equal share of your estate, and if your child dies before you, then his or her share will get split among his or her children.

If you die and none of your listed heirs are alive and you do not leave behind any living descendants, then your estate would go to your “heirs at law.” The Texas Estate Code defines the heirs of a person who dies without a Will, and those persons are considered your “heirs at law.” According to the Code, heirs at law generally starts with your spouse, then your children, then your parents, then your siblings, then your nieces and nephews, and then your cousins. Beyond that it’s essentially the closest person related to you.

In Texas, your Will determines who gets your probate property. Non-probate property is not controlled by your Will. Non-probate property goes to persons who you have listed as beneficiaries or otherwise contracted with. The most common types of non-probate property are life insurance and retirement accounts with listed beneficiaries, joint bank and brokerage accounts passing by survivorship, and property held in trust.

Once you have a valid Will, it is still very important that you be aware of your non-probate property and who it will go to according to the beneficiary forms you have signed.

Non-probate property includes life insurance proceeds, IRAs, and employee benefit plan proceeds, such as 401(k) plans and pensions. These assets and payments are non-probate property that pass outside probate to the persons named by the decedent in the appropriate beneficiary designations. These assets may be probate property if there is no beneficiary designation or the designation is not valid or if the beneficiary listed is “my estate.”

For example, if your 401(k)-retirement plan at work lists your children as your beneficiaries, they will inherit your retirement plan even if your Will says that all of your estate goes to your brother.

Joint bank, credit union, and brokerage accounts with a right of survivorship or pay-on-death account designations are also non-probate property. A bank account that is set up as a joint tenancy with rights of survivorship or payable of death account is owned by two or more people. When one of the people passes away, the ownership of the property simply passes on to the other account holders. For example, if you have a bank account and add your son as a joint owner with the right of survivorship, your son would receive the full account upon your passing. This option allows your surviving beneficiary to avoid probate since ownership is transferred directly.

A “transfer on death” deed is used to make real estate non-probate property. A transfer on death (TOD) deed is like a regular deed you might use to transfer your Texas real estate, but with a crucial difference: It doesn’t take effect until your death. At your death, the real estate goes automatically to the person you named to own it (your “beneficiary”), without the need for probate court proceedings, and the property does not pass according to the terms of your Will.

Property held in trust is also non-probate property. This feature is one of the primary reasons for establishing trusts. The terms of the trust determine how the property is handled after the death of the trust’s settlor.

You can change your Will at any time by signing a new version (with a notary public and two witnesses). You can also sign a Codicil, which is a short amendment to your Will. However, the Codicil must specifically refer to the Will it is amending and it must be signed by you and two mentally competent adults as witnesses. Our “Peace of Mind” Will Packet includes forms for you to change your Will in the future, although we suggest you consult a lawyer and consider an entirely new Will.

A Will signed in another state or country can work in Texas and vice versa. However, probate law is different in each state.

Texas makes probate much cheaper and easier by allowing independent administration with little court involvement, but a Will from another state may not use the right wording to allow your executor to serve independently. Also, Texas allows Wills to have a “self-proving” affidavit, which allows a Will to be probated without witnesses coming to court to testify. A Will from another state does not usually contain such a self-proving affidavit. A person living in Texas with a Will prepared in another state is usually better off getting a new Will drafted in Texas.