EXPLORING THE BASICS
TERMINOLOGY YOU SHOULD KNOW
WHAT IS A WILL?
TYPES OF WILLS
WHAT GOES INTO A WILL?
WHAT HAPPENS IF I DON'T LEAVE A WILL?
The following information and terminology should help you navigate through some of the basics of Estate Planning.
Any individual who creates a Will is called the Testator. The culmination of the Testator's property (everything you own) is called the Estate. A testator's estate may consist of Real Property and Personal Property. Anything that is fixed property (houses, buildings, land) is your Real Property. Most everything else would be considered to be your Personal Property (car, furniture, jewelry etc.) A valid Will can Devise (to leave) a persons real property and/or Bequest (to leave) their personal property. Make sense?
If a person dies with(out) a valid Will, the state of Texas considers that person to have died Intestate. Since there is no Will to guide the distribution of the estate; the State will follow a prescribed Intestate Succession.
If a person dies with a valid Will, the state of Texas will begin a process to validate and fulfill the contents of the Will. This process is called Probate. Not all of your estate will go through the probate process. These items are called your Non-Probate Assets.
On a very basic level, most people know that a Will "does" stuff. You know its a thing that tells Uncle James that he's getting the house, and Aunt Harriet that she's getting the antique furniture. If you come from a family like most, you probably even know a Will is that thing people fight over because "Grandpa wasn't in his right mind when he left the house to Uncle James and Aunt Harriet is contesting the Will." All of these thoughts can be true; HOWEVER, what a Will 'does' may not be as important as knowing what a Will 'is.'
So...what is a Will?
In the State of Texas, a Will is a (1) written document; (2) demonstrating testamentary intent; that is (2) signed; while a person has (3) legal capacity; and (4) testamentary capacity. I plan on revisiting this topic in a future blog. In order to feel comfortable and confident that a person's loved-ones receive their intended inheritance; it is extremely important to understand these components. If a court is unable to validate a Will; then it follows an order of distribution that may not be in line with your wishes. Ideally, a qualified attorney can draft a Will that is lawfully compliant and ensures a person's last wishes are carried out.
After reading that, a person wants to leave their oldest daughter their Earth Wind & Fire Vinyl Collection; but could you truly sit down and feel comfortable that you're doing it right? If a court is unable to validate a Will; then it follows an order of distribution that may not be in line with your wishes. In order to feel comfortable and confident that your oldest daughter will get that....understanding these components or ideally working with someone who does will help you rest assured that your wishes will be carried out as described."
Texas recognizes two types of Wills.
This is the most common type of Will. To be valid, it must be (1) written; (2) signed by you; or another person at your direction and in your presence; (3) demonstrate testimantary intent and (4) attested in your presence by at least two witnesses over the age of 14.
These are Wills that are completely written and signed in the testator's (person making the Will) own personal hand writing. Some people refer to these as "napkin Wills." They are valid in the State of Texas; however, a probate court must go through processes to authenticate your hand writing and signature. While a court may go through great efforts to validate a Holographic Will; this process may not always end favorably for people choosing this route.
As mentioned above, there are relatively few requirements to create a valid Will in Texas. However, individuals should be very cautious in using (and solely relying on) online templates and(or) automated services to complete their Will.
When possible, individuals should always consult with a qualified attorney before executing a Will that was personally prepared.
Still, there are some basic things that go into most Wills:
Biographical Information - legal name, address, etc.
Family Information - name of spouse, children, parents etc.
Testamentary Intent and Distribution- demonstrating, listing, identifying property (and) people that you own and wish to leave to people/organizations etc.
Executor of the Estate Assignment(s) - identifying a person that will handle all necessary duties- including, but not limited to, (1) notifying creditors, (2) settling debts; (3) notifying the people who will inherit, (3) closing out your accounts, (4) closing down your social media; (5) distributing your estate to all intended recipients; and (6) addressing any guardianship requests that have been made. This is an extremely important role, and a qualified attorney can walk you through the necessary considerations to make an informed assignment.
Contingency Assignments and Distribution- providing alternative recipients should someone be unwilling, unavailable, or deceased to accept their inheritance. Sometimes a person also wants to leave alternative property to someone, in the event, that something that was promised is no longer available at their time of death. (i.e. a car)
Incorporation By Reference and Pour Over Items- Identifying any pre-existing trusts, accounts, or items that impact the distribution of your property. Some times people wish to create trusts and(or) other accounts to after they die in order to manage the distribution of any specific property.
Attestation- a valid Will must be properly attested (signed) by the testator (you) and two credible witnesses over the age of 14.
Self Proving Affidavit - this is a separate document that is intended to mitigate the need for a court to bring the witnesses (that signed your Will) in to affirm their signatures, your signature etc.