Estate Planning Necessities: The Will

EP - Sep 26What is a will?

A “will” is legally defined as “a written document which leaves the estate of the person who signed the will to a named persons or entities…including portions or percentages of the estate, specific gifts, creation of trusts for management, and future distribution of all or a portion of the estate.” In short, a will is a legal document that disposes of the assets of a person’s estate upon their death. A will also appoints the person who will be in charge of administering and distributing the decedent’s estate.

What goes into a will?

A will can be summarized by 3 simple questions:

1. Who gets what?

This should cover any specific gifts a person would like to make (perhaps a gift of a particular piece of personal property or a lump sum of cash) to any number of beneficiaries. A person will also want to be sure to cover any gifts to charities that the person would like to make. Any assets not specifically gifted to a person or entity will become a part of the person’s “residuary estate.” Any gifts made in a person’s will (either specific gifts or a gift of a portion or all of the residuary estate) can be made either outright or in trust.

2. How much are they getting?

After determining who the beneficiaries of their estate will be, the person should then determine how much (i.e. what specific assets or what portion of the residuary estate) each beneficiary will get. It is important to understand that there is no right or wrong answer to this question.

3. Who is in charge?

Finally, a person will need to appoint an executor—the person in charge of administering the person’s estate after the person dies. This should be someone the person knows and trusts, and who is aware of the person’s wishes in matters concerning their estate. The executor will be responsible for collecting the assets of the estate, paying the expenses of the estate (including any debts owed by the decedent), handling matters with the probate court, and finally, distributing assets to the beneficiaries of the decedent’s estate. Depending on the terms of a persons’ will, a person may also need to appoint a trustee who will be in charge of administering any trusts created by the decedent under the terms of their will.

What are the requirements for a legally valid will?

In order for a will to be effective, there are certain requirements that must be met. First, the person executing the will must have “legal capacity,” meaning they are at least 18 years of age or older. They also need to have “testamentary capacity” which requires that the person understand they are executing a will, the effects of executing a will, and the nature and extent of the property comprising their estate. Additionally, testamentary capacity requires that the person know the “natural objects of their bounty” (i.e. they must know their family members, heirs, relatives, etc.), the fact that the will is disposing of the person’s assets, and how all of these elements relate to distributing the person’s estate. Additionally, the person needs to have the testamentary intent of making a will (i.e. of making a revocable distribution of assets that will be effective at the time of their death).

There are also a number of legal formalities that are required to have a valid will: the will needs to be “written” (note that this does not necessarily mean handwritten), signed by the person making the will, and attested to by two witnesses who are at least 14 years of age. The signatures of the testator and the witnesses need to be notarized, and the will should be self-proved in the manner provided for in the Texas Estates Code.

Finally, please note a will that is wholly (i.e. 100%) in the handwriting of the testator is a valid and effective will per the Texas Estates Code.

Do I really need a will?

The short answer to this often asked question is yes, but the full answer is perhaps a bit more complex. In truth, each person already has an estate plan in place—the plan put in place by the Texas legislature in the Texas Estates Code. If a person dies without a will (or “dies intestate”), then a series of provisions in the Texas Estates Code spell out who gets the assets and in what proportions.

While the Texas Estates Code does detail how a person’s estate should be distributed in the event they die without a will, the process is more time consuming and costly for the estate and its beneficiaries than simply probating the will of a deceased person. By having a will in place, a person can ensure the process remains as efficient and inexpensive as possible, which means there will be more available for the benefit of the decedent’s beneficiaries.

John Conner is the author of this post. He can be contacted at jconner@gdhm.com or 512.480.5612.

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