Do I Need A Will in Texas?

Feb 1, 2021Wills

Leslie Thomas, Attorney

Do I Need A Will in Texas? Who Needs A Will (And When)

Will planning is not high on anyone’s list of favorite things to do: few of us enjoy thinking about our deaths and much less planning for them. But this is one of the single most important things we can do for our families, our loved ones, and our business partners.

Will and estate planning is a task many Texans push aside for years. Not only do they push it aside to avoid thinking about death, but people often also assume it will be an extremely time-consuming or expensive undertaking. That is simply not the case. 

The time and money you spend on will planning will pay off tenfold in the time, money, and frustration saved by your loved ones after your passing.

Wills are not just for the “wealthy:” everyone needs one.

do I need a will

Why Do I Need a Will? 

You need a will if you want your property and assets distributed according to your wishes. You cannot assume or trust that your family members will “know what to do” or that even if they fully understand your wishes, they will legally have a way to act on them.

Without a will, the state is in charge. This means things can get complicated quickly; if you throw into the mix any issues with family dynamics (a late in life “falling out” with a sibling, for example), you run the risk of leaving your family in an absolute and chaotic mess, with different family members fighting over what to do. 

At the same time, a court may not only drag out the process but also end up distributing your property and assets in a way you would have never specified.

A will also enables people to designate gifts and donations so that in their passing, they might have a final opportunity to cement a legacy of what causes they valued. Additionally, a will and estate plan allow an individual to have some control over tax liabilities that will impact those who inherit the estate.

What Items Do I Need to Prepare a Will? 

To prepare your will, you will need to spend some time gathering all of the relevant information.

For every individual you plan to distribute property to after your death, you will need to include full names, addresses, and birth dates.

You should also aim to keep accurate records of all of the debts you have incurred, which may include a home mortgage, credit card accounts, and loans for businesses, automobiles, or education. (Creating these records is not only a good idea for estate planning, but it also ensures family members can step in and help manage your finances in the event of an illness or accident that requires long-term hospitalization).

Perhaps most important of all in your will and estate planning will be a list documenting all of your assets. Your personal assets may include any or all of the following:

  • Real estate you own
  • Savings accounts (such as a traditional bank savings account or CDs) and Investment accounts (such as stocks and bonds)
  • Your 401k or other retirement accounts
  • Any automobiles, boats, or other vehicles
  • High-value personal property (such as jewelry and art)

Finally, several legal documents may pertain to your will based on your own circumstances, such as a prenuptial agreement, a divorce decree, or a trust fund.

What Happens if I Die in Texas Without a Will? 

Intestate succession laws govern how property is distributed in Texas if the deceased left no will. Before we look at how the property is divided, we will clarify what may be excluded.

These are examples of assets that would not be subject to the intestate succession laws:

  • Funds in a retirement account
  • Life insurance proceeds
  • Payable-on-death bank accounts
  • Property transferred to a living trust
  • Property you own with someone else

These kinds of assets are directed to the beneficiaries you designated when the accounts were set up.

However, without a will, other property (your home, for example) is directed by the state.

For parents who die without a will in Texas, the state creates “intestate shares” for those children, and the shares will depend on the number of children, whether or not the parent has a surviving spouse, whether those children are also the children of the surviving spouse.

This can turn tricky quickly with blended or large families. Stepchildren, for example, would not automatically receive an intestate share from the state. However, if you have raised the stepchild since a very early age and consider him your “own,” that is reason enough to be sure you have a will.

For single individuals with no spouse or children, the state will look for the closest living relative to inherit your property, including cousins, nieces, nephews, etc. In the rare case of absolutely no living relative, your property would escheat to the state, meaning it would be forfeited to the state after you passed.

The full intestate codes are outlined here, with the amount of detail and complicated scenarios acting as one more reminder of why it is important to have a will in Texas.

What Happens if I Need to Make Changes to My Will? 

Many people are reluctant about planning wills for fear that their circumstances will change; this is a normal worry, and fortunately, wills can be changed, and it happens fairly often.

To make changes to your existing will, a codicil is needed. This is just another word for amendment: you can use it to delete existing sections, amend them, or add new information altogether.

Thanks to the ways that modern medicine has evolved, people are living longer and healthier lives than ever before in our history. And these longer lives mean more changes, whether that includes remarrying after the loss of a spouse, opening a new business in what you thought would be your “retirement years,” or seeing your years of hard work pay off as you purchase that vacation home you always wanted.

All of these scenarios (and many others) could mean your will could use a refresh. By working with a Texas based estate planning attorney to update your existing will, you can rest assured that it appropriately reflects these life changes.

Unfortunately, it is not as simple as handwriting changes on the document: you will need to ensure the codicil is carried out with the same formal requirements of the will itself (with witness signatures and affidavits where necessary).

Texas probate courts are accustomed to working with codicils. As long as yours is drafted by a licensed attorney (which can be done for a reasonable fee), you will ensure that your wishes for property distribution and other matters are carried out as directed.

Should My Will Include My Funeral Plans? 

We think everyone should be reminded of the need to create separate documentation for funeral plans. Many people confuse such documents with wills, assuming a will is a place to instruct family members of ALL wishes of the decedent, including how you would want your life to be celebrated and remembered.

The truth is that wills are often not reviewed or even discovered until weeks or months after death. Therefore, it is a good idea to have at least one family member (preferably a few) aware of your specific requests for a funeral and have those requests documented outside of a will.

When Do I Need a Will? 

Attorneys do not hold a crystal ball when asked this question; it is impossible to know what the future holds for anyone, and there is no “one size fits all” answer when it comes to when an individual needs a will. Despite what you may have heard, there is no set age for when you are supposed to have a will.

On the other hand, there are three events we would call “triggers” to prompt your will and estate planning, which are marriage, children, and positive net worth (though they may not necessarily occur in that order).

You Need a Will if You Are Married

Even if you marry at a very young age when illness and death seem like such far away and remote possibilities, you owe it to your spouse and your loved ones to go ahead and get a will taken care of after your nuptials. If you want anyone other than your spouse to inherit certain assets, you need to have that documented; otherwise, everything will likely go to your spouse without a will.

You Need a Will if You Have Children

One of the most important elements of wills and estate planning for parents is the designation of who you would want to act as guardian for your children. This will ensure that the children are cared for according to your wishes if something happens to you and your spouse.

You Need a Will if You Have a Positive Net Worth

Even if you are single and have no kids, positive net worth should trigger you to organize a will. Once your assets exceed $100,000, you need a plan to distribute those assets after your death.

No matter what age you are when you decide it is time for a will, whether that is 25 or 75, you can rest assured in planning one that your loved ones will benefit from your effort and will be spared frustration in their time of grief. Wills are one of the best things we can do for our families, and why not get started on yours today?

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We are here to help you with all of your estate planning needs.