Texas Wills FAQ

There's a lot to know about Wills. You need to understand the difference between a Will and a "Living Will" ( a Directive to Physicians), how Wills should be executed, and how they can be modified, terminated, or challenged. You also need to understand the probate process and how that can affect the outcome of your estate planning goals.

What is the difference between a Will and a living Will?

A Will – also formally and traditionally sometimes called a last Will and testament – comes into effect when its creator dies and is "admitted to probate" by a judge. It directs the executor on how to handle the property in the estate. A living Will, on the other hand, perhaps more descriptively called a “Directive to Physicians,” has nothing to do with property and applies to the creator's preferences and medical decisions while they are alive regarding their end of life healthcare.

Here, we provide general responses to some of the most common questions we receive from clients. To get more specific information and to either create or update a Will, contact our Wills and Estate Planning lawyer in Longview, Gregg County, Texas. You can do so by filling out our online form or calling Adams, King, & Smith at (903) 757-3331 to schedule a FREE CONSULTATION FOR WILLS, PROBATE OF A WILL, OR ESTATE PLANNING TO INCLUDE TRUSTS with our Wills and Estate Planning attorney in Longview.

Who Should Have a Will?

What if I have no children?

If you die without a Will, your estate will pass to others through your state's intestacy laws. If you have no children, then property will be disbursed to family members (closest heirs). If there are no heirs according to your state's intestacy laws (a rare occurrence), then the state may acquire the property. So, even if you do not have children, you still need a Will if you do not want the state to make decisions for you about who gets what from your estate.

Keep in mind you do not have to create a Will to benefit only family. A Will allows you to pass your estate in a way that will serve what matters most to you: this could be preserving the financial well being of your partner, parents, or siblings, but also setting money aside for the care of a pet, or assisting a charitable organization aligned with your values.

Do I need a Will if I don't have much property?

Many people assume that only the wealthy need to have a Will. However, the truth is that most people, with and without great wealth, need to have a Will in case the unexpected occurs. It also makes probate of the estate vastly simpler and less expensive.

People who should have a Will include but are not limited to:

Those who are married
Those who have children
Those who have titled property, especially land or minerals or a house
Those who have a special needs family member

Only people who do not have assets, a spouse, and/or children may not need a Will.

What happens if I die without a Will in Texas?

Dying without a Will means you die intestate. Your assets and belongings in Texas will get passed to your heirs according to Texas intestacy laws. It has sometimes been said that "if you don't write a Will, the government will write it for you, and you may not like it". The result may not be at all what you think or want. For example, if there is a second marriage, and the deceased had children from a prior relationship, they will usually inherit all of the deceased's share of community property and most of the deceased's separate property, not the spouse.

When Should I Make a Will in Texas?

A Will needs to be created and often updated when certain events occur:

When you move to Texas from another state
When you marry, divorce, or remarry
When you have children
When you start a business
When you buy a home
When you become an adult

Whenever you have a major life change, it is time to make or update your existing Will.

Do I need a new Will if I have moved to Texas with a Will made in another state or if I move to a new state from Texas?

Under the full faith and credit clause of the U.S. Constitution, a Will that is validly executed according to the laws of the state where it was made is generally recognized as valid in other states. However, there are several important reasons to consider updating a Will after moving to a new state.

Why should a Will be updated when moving to Texas or to a new state from Texas?

Differences in state law:

Each state has different laws regarding the distribution of property, spousal rights, homestead exemptions, powers of personal representatives, bonding requirements, and elective shares. Texas, for instance, has community property laws that may affect how property is distributed, while other states may follow common law rules. A Will usually not be fully optimized for the new state's laws.

Executor and witness requirements:

Some states have specific rules about who can serve as an executor or who can witness a Will. If the executor named in the Will lives out of state, there may be additional bonding requirements or restrictions in the new state.

Changing family and financial circumstances:

Moving to a new state often accompanies other life changes such as marriage, divorce, or acquiring new assets (like real estate). An out-of-state Will may not account for these changes, and it's prudent to review your estate plan to reflect your current life situation.

State-specific probate procedures:

Some states have unique probate rules that may affect the administration of the estate. Texas, for example, allows for independent administration, which can simplify probate, but this may not be included in a Will drafted in another state.

Real property in the new state:

If you purchase real property in the new state, it's important to update your Will to comply with local laws governing real estate transfers, as states have different requirements for how real property is treated in Wills.

What Does a Will in Texas do?

A Will directs who gets your assets when you die. If you have children, you can designate who you want to raise your children (guardianship) and who will control their property if you pass away. A Will also allows you to appoint an executor (also known as a personal representative) for your estate. This person will be in charge of administering your estate according to the terms of your Will when you die.

What is a guardian?

A guardian is a person who is responsible for someone else's well-being. People often appoint a guardian for their underage children in their Will or for their adult children with special needs. These legal guardians can make legal decisions on behalf of their charges, much like a parent.

How can I designate a guardian for my children?

Naming a legal guardian for your underage children is a common provision in a Will. You also have the ability to name a guardian for adult children who may be unable to make certain decisions.

If you do not designate a legal guardian via a Will, the court will appoint one upon your death. A surviving parent typically has priority as a natural guardian. It that parent is unfit, or just to be on the safe side, it may make sense to designate a guardian in your Will.

What Should not be put in a Will?

There are certain things that are best dealt with through other means rather than a Will. Things that are often better handled by designating named beneficiaries in the respective documents other than a Will include:

Retirement plan proceeds
401(k) plans
Life Insurance
Living trust property
Financial accounts

A Wills and Estate Planning attorney can advise you on the best way to handle these matters. Many of them can complement your Will and work well in an estate plan. It is important to factor them in and coordinate them with your Will.

What if my spouse is named in my Will and we get a divorce?

In Texas, if a person gets divorced after making a will, the law automatically revokes any provisions in the will that benefit the former spouse. This means that any bequests, fiduciary appointments, or other provisions in favor of the ex-spouse are treated as if the ex-spouse predeceased the testator (the person who made the will). Nonetheless, it is often better to revise your Will to be sure it disposes of your property and names an executor you want.

Does my Will automatically change if I have a child?

A child who is born or adopted after a Will is executed is called a pretermitted child. Typically Texas law will protect the child's interests and provide a share of your estate for the child, but it is ill advised to rely on that. You should always revisit your Will after having a child and see a Wills Lawyer to be sure the child is provided for as you would want.

Can My Parents Leave Me Out of their Will sometimes referred to as disinheriting?

In Texas and most states, yes.

Can Someone Challenge My Will in Texas after I Die?

There is always a possibility someone will challenge your Will after you pass away. Whether or not that challenge is successful is a different question. Some of the most common reasons Wills are challenged include:

That the testator (maker of the Will) was under undue influence or lacked the capacity to make a Will
That the Will is a fraud/forged
That the Will lacks the formalities required to be valid, such as being signed and correctly witnessed

Having a lawyer help with the process of creating your Will can help prevent successful challenges. Unfortunately, we see many do it yourself Wills that are invalid with the result that the beneficiary or beneficiaries do not receive the property that the maker had hoped, and those whom the maker did not want to get the property get it. A very sad and disturbing result. This is not the time to try to save a few dollars.

Can someone make a Will if they have Alzheimer's or dementia?

People need to have testamentary capacity to make a valid Will. This requires an understanding of the property being devised in the Will, who is going to receive it, who legal heirs are, and the purpose and function of a Will. People with Alzheimer's or dementia may struggle with testamentary capacity. The best way to make sure they have a Will in place is to hire a lawyer to help.

Can I Make a Will without a Lawyer in Texas?

While you do not have to have a lawyer to write a Will, doing so is a considerable risk for little savings, if any in the long run. It is possible to create a Will without the assistance of a lawyer. However, the law is very specific regarding what is required for a Will to be considered valid, and small omissions can result in catastrophic failures. If you create the Will on your own, and it does not meet the legal requirements for validity, it may be void. A last Will and testament that was not written by a lawyer or that was created using an online form is often more easily challenged, deemed invalid, may leave significant assets unaccounted for, be more difficult and costly to probate, and can create difficulties, costs and distress for your loved ones that could have been avoided.

We have seen too many of these problems. Sometimes, at substantial cost both financially and emotionally, a poorly drafted Will can be salvaged, but the money spent and the distress it has caused vastly exceed any money saved by not having a Wills Lawyer prepare it.

How Much Does it Cost to Make a Will?

The cost of creating a will varies. It may be less than you think. It depends on your estate and whether you want additional estate planning tools, like trusts and advance directives. It may well be the best value there is for legal expenses and Peace of Mind. Many wills and trusts lawyers in Texas charge a fixed rate for estate planning while other attorneys charge an hourly rate. You will want to know what is and is not included in either rates.

Contact a Wills and Estate Planning Lawyer Longview in Texas Today

Do not procrastinate another day before starting an estate plan because your loved ones are too important. Later may be too late. Wills are often an integral part of any estate plan, and keep in mind: it really does not matter how much your estate is worth. What matters is protecting your interests and securing your heirs' futures.

Contact Adams, King, & Smith today online or at (903) 757-3331 to schedule a FREE CONSULTATION FOR WILLS, PROBATE OF A WILL, OR ESTATE PLANNING TO INCLUDE TRUSTS. Our Wills and Estate Planning attorney in Texas will guide you through the process.