A Last Will and Testament is more than just a legal document. It is the final instruction manual you leave for the people you love most.
However, the gap between knowing you need a will and actually executing a valid one is often filled with anxiety, conflicting advice from the internet, and a fear of making a mistake that could cost your family dearly.
In Texas, the difference between a “standard” will and a comprehensive estate plan often comes down to someone’s personal goals. While online forms can generate generic templates, they often fail to account for the specific protections available under the Texas Estates Code that protect your family from administrative headaches.
At Duffley Law, we believe that work product is king. A will is often the last line of defense for your family’s financial future, so it needs to be done with care.
The Texas Validity Protocol for Wills
A will that fails to meet the strict requirements of Texas Estates Code Chapter 251 is essentially worthless, leaving your estate to be divided by the state, not you.
For a will to be recognized by a Texas probate court, it must meet four non-negotiable criteria:
- Legal Capacity: You must be at least 18 years old (or lawfully married or a member of the armed forces if you’re not yet 18) and of “sound mind.” This generally means you understand what you’re signing and have the legal capacity to make decisions for yourself.
- Testamentary Intent: The document must clearly state that you intend for it to dictate how your property is handled after death.
- Written Format: Texas recognizes two forms:
- Attested Wills: Signed in the presence of witnesses.
- Holographic Wills: Wholly handwritten and signed by the testator. While legal, they often carry a higher burden of proof required in court to validate, or require extra steps in a future probate when compared to a more effectively drafted, attested will.
- Proper Execution: You must sign the will in the presence of two credible witnesses who are at least 14 years old (unless it is a holographic will, which generally does not require witnesses). These witnesses must also sign the document in your presence.
Planning for Your Specific Life Stage
One-size-fits-all estate planning is a myth. Your requirements change drastically depending on your family structure.
For Married Couples: The Community Property Nuance
Texas is a community property state, which creates a common misconception: “I don’t need a will, my spouse gets everything anyway.” This is false.
If you die without a will, Texas law dictates how your separate property and your share of community property are divided.
If you have children from a previous relationship, your spouse may not inherit your share of the community property at all and that would instead go to your children. Simply put, the law may differ from your intentions significantly.
A properly drafted will overrides these default state rules, confirming your spouse (or anyone else you care about) is protected and asset transfers are more efficient.
For Parents: Guardianship Provisions
For parents of minor children, the distribution of assets is secondary to one serious question: Who will raise my children if they are still minors?
A Texas will can be used to nominate a guardian for your children if they’re still minors (or it can sometimes be done on a separate declaration of guardian document). Without this nomination, a judge, who does not know your family, may not even consider your preferred guardian for your children if you were to pass away.
For Single Individuals
Without a spouse or children, the state’s default plan (intestacy) will look for parents, siblings, or distant relatives. If you wish to leave assets to a close friend, a partner you are not legally married to, or a charitable cause, a will can be an effective way to make sure your assets from passing to estranged family members.
Understanding Exempt Property
Most online guides gloss over one of the most powerful protections in Texas law: Exempt Property. This is where high-quality legal counsel pays for itself.
Under Texas Estates Code, specific assets may be protected from certain creditors during estate administration. This can include:
- The Homestead: Your primary residence is often protected from “unsecured” debts at your passing. Mortgages generally follow the property, though!
- Personal Property: Up to $100,000 (for a family) or $50,000 (for a single adult) worth of personal property can be exempt. This includes home furnishings, tools of the trade, clothing, and even up to two firearms.
Certain other assets can be exempt from certain types of creditors, though every case can differ. There is no one size fits all when it comes to estate planning and probate, and every situation is different.
How To Choose Your Executor
Your Executor is like the CEO of your estate. They are responsible for gathering assets, paying debts, and distributing what remains.
Legal Disqualifications
Texas is strict about who can serve. A person is disqualified if they:
- Are incapacitated.
- Are a convicted felon (unless pardoned or rights restored, though a court may still be allowed to appoint a felon as an executor if named directly in a will to serve as an executor).
- Are a corporation not authorized to act as a fiduciary in Texas.
- Are found “unsuitable” by the court.
The Backup Strategy
When we create estate plans with our clients, we typically advise on appointing a primary executor and at least one alternate executor.
Life is unpredictable, if your primary choice is unable to serve due to illness or death, having a named backup can prevent the court from appointing a stranger or some other person to manage your affairs.
2 Hidden Risks With Delayed Planning
Two major risks threaten families who delay planning:
1. The Cost of Dying Intestate
Dying “intestate” (without a will) triggers the Texas laws of descent and distribution.
This process is often significantly more expensive and time-consuming than probating a valid will. It often requires an “Independent Administration” to be converted into a “Dependent Administration,” meaning the court must approve almost every penny spent or asset sold before things are distributed to the heirs.
Either way, it tends to be a much lengthier process than when there is a valid and effectively drafted will.
2. The 4-Year Statute of Limitations
Under Texas Estates Code, a will generally must be submitted for probate within four years of the person’s date of death. If your family misses this window, the will may be disregarded entirely, and the estate may pass via intestacy laws as if the will never existed. This can create a “use it or lose it” scenario that demands a strategy.
Looking for Unclaimed Property
Once an executor is appointed, comprehensive estate administration often involves looking for assets the family didn’t know existed. A thorough executor should utilize the Texas Comptroller of Public Accounts unclaimed property database.
Millions of dollars in “unclaimed property”, like forgotten bank accounts, utility deposits, and insurance proceeds, sit in state coffers. We encourage a search of these records to make sure no part of someone’s legacy is left behind.
Taking the Next Step With Duffley Law
A Last Will and Testament is about securing the future for those remaining. It provides clarity in a time of chaos and protection against unnecessary legal hurdles.
A well-drafted will might be just one part of an effective estate plan.
At Duffley Law, we design flat-fee estate plans tailored to your specific assets and goals. Whether you need a simple will or a more thorough strategy to avoid probate altogether, our mission is to provide you with the same high-quality counsel we would want for our own families.
If you want to design a plan that can avoid the need for probate altogether, feel free to contact us today and we can work towards making sure your legacy is preserved exactly as you intend.