A Short Lesson on Texas Wills

Like most firms, my firm will draft simple wills for people who do not need extensive estate tax planning. I have found that most people don't know what happens if someone dies without a will, or what the law requires for a will to be valid.

If you die without a will, the Texas Probate Code will determine who gets what. The statutory scheme is logical, and pretty much follows what most people, most of the time, will want to happen to most of their property. The Probate Code provides for every imaginable situation of what relatives may or may not survive you. The only problem with these rules is that the result they require may not be what you want to happen, and there is no provision for making gifts of particular pieces of property to particular people.

Do you want your nephew to get your baseball collection, or a special friend to get a valuable piece of jewelry? To make sure that happens, you'll need a will. Likewise, people with children will need a will if they want to make sure that an ill parent or other elderly relative is taken care of - or any one of the other dozens of situations that come up in our lives that no general statute can anticipate.

If you decide to make a will, Texas law provides for three types of will. In certain situations, a witnessed statement of a will (sometimes called a "deathbed" will) can be valid. Usually, however, wills must be written. There are two types of written wills, the "holographic will" and the "formal will."

A holographic will is a will entirely in the handwriting of the person making the will, and it must be signed by the person making it. It need not be dated - which has resulted in much litigation concerning competing holographic wills. Under the law, a subsequent will supersedes a prior will, so dates matter.

A formal will is any other written will meeting the requirements of Texas law. It needs to be properly dated, signed, notarized and witnessed by people who are not beneficiaries of the will.

Any will can be made "self-proving", that is, sufficiently authenticated that probate courts will accept it and enforce it without the necessity for a formal hearing. This requires the affidavits of the witnesses and the maker to be attached to the will.

There are many other issues to be concerned with in legal planning for the inevitability of our deaths, such as custody and care of our minor children, the continuation of a family business, marital property and tax issues. Most lawyers will offer to prepare other documents in conjunction with a will to take care of these issues, as well as issues which arise when a person is incapacitated or becomes mentally incompetent, such as a parent who has Alzheimer's, or the victims of serious car accidents. These documents typically are prepared as part of a "will package" for one inclusive price.

Some issues surrounding property distribution after death are so complex that only a specialist should handle them. My firm, like most others, will send clients on to probate or tax specialists in these situations.

John Polewski is a board certified attorney with offices in DeSoto and Midlothian.