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Basic Will

Basic Will & Estate Planning

A will is a written document in which an individual disposes of his or her property, the disposition to take effect upon the signer’s death. If a person dies without a will (that is, intestate) in Texas, that person’s property will be distributed according to the inheritance laws imbedded within the Texas Probate Code.  In other words, if you don’t have a will, the Texas legislature has already written one for you and it is found in the Texas Probate Code.

The fundamental requirements of a will are:

  1. The maker of a will must intend to create a disposition of the maker’s property (which may be revoked prior to death), to take effect upon the maker’s death
  2. It must identify the person who is making the will (a male is called a testator, and a female is called a testatrix)
  3. The will must be signed by the maker substantially observing the formalities required by the Texas Probate Code
  4. The maker of a will must generally be at least eighteen years old, and the maker must be of "sound mind."

A will which is entirely handwritten by the maker of the will is called a holographic will.  A holographic will may not be a preprinted form completed by the signer, nor may it be printed on a computer printer and then signed.

What should be contained in a Basic Will?

The content of a basic will may vary in simplicity and complexity, but it typically includes or addresses the following:

  1. Identifying the maker of the will and the maker’s family
  2. Appointing a personal representative and alternate or successor personal representatives (that is, the executors of the estate)
  3. Declaring that the personal representative of the estate will be an independent executor under the Texas Probate Code who will be free of court supervision
  4. Making specific gifts of personal property and real property
  5. Making gifts of the residuary estate
  6. Creating contingent trusts for beneficiaries who have not reached a designated age or who may be legally disabled
  7. Setting out or defining the powers, the authority, and the obligations of the personal representative
  8. Including a self-proving affidavit permitted under the Texas Probate Code.

A will may be modified or revised by a subsequent written document which meets the basic requirements for a will described above. This amending document is called a codicil.

For most married couples whose combined net worth does not exceed $1,000,000, a basic will may be appropriate.  However, combined estates larger than this amount may be exposed to confiscatory federal estate taxes upon the death of the second spouse (see the discussion regarding bypass trust wills).

I regularly assist clients in the preparation of basic wills and other estate planning documents.

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