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Archive for the ‘Wills’ Category

I don’t own anything, why do I need a will?

In Wills on January 18, 2018 at 1:52 PM

By Deirdre Kelly Trotter

Even if you feel you have nothing to pass on, a will does more than distribute your property. It identifies the person you want to handle your affairs after you are gone. It sets out who you want to receive any property you may have. In addition, if you die as a result of an accident, there may be claims and monies available through a death claim that result from your death, or maybe you have a winning lottery ticket in your pocket when you die. Stranger things have happened.

If you die without a will, a dependent administration may be the result. In a dependent administration the court is involved in every stage of the administration. Because an individual who is not an attorney cannot represent another person or an estate, it is necessary to get the help of an attorney to handle the administration before the court. Depending on the size of the estate, a large portion of the estate may be consumed to cover the costs associated with the dependent administration, and if there is not enough value in the estate to cover the costs of dependent administration, your loved ones may be left to pick up the tab. By contrast, with a will, court involvement is minimal and expenses are greatly reduced.

There are different reasons for failing to make a will, fear of cost, fear of hurt feelings, the reasons change with the person. However, failing to execute a will may be more expensive and more hurtful in the long run. The better you have planned your exit, the better it will be for those you leave behind. Be open and honest with family members to avoid surprises later.

In Texas, a person of sound mind has the right to make a will, if the person is at least 18 years of age, is or has been married, or is a member of the armed forces of the United States, an auxiliary of the armed forces, or the maritime service. Tex. Est. Code § 251.001. Because of the sound mind requirement, a person must make estate planning decisions while he/she has capacity.

In Texas, an attested will must be in writing, signed by the person making the will, and attested to by two witnesses. Tex. Est. Code § 251.051. However, there is an exception for holographic wills. A holographic will must be wholly in the handwriting of the person making the will, and signed by the person making the will. Tex. Est. Code § 251.052. It should be dated, but does not require witness signatures. Seeking appropriate legal advice for estate planning is important, but a wholly handwritten and signed will, preferably with a date may be better than no will at all. However, keep in mind, if there are issues with the holographic will, it may require court intervention to interpret and resolve those issues, so it is not a foolproof solution.

While there are no guarantees, taking action now may save a lot of heartache and misery for your loved ones later. Even if you don’t feel you own anything, having a will in place is a wise choice.

A Will’s Bare Necessities

In Legal, Texas Law, Uncategorized, Wills on August 30, 2011 at 10:14 AM

The normal goal for a person to have when writing a will is to ensure that all of his property and money are given to the right people after he dies. On the other hand, perhaps the central focus for an attorney drafting a will is to ensure that the will is written in such a way that it would be very difficult to contest. Both of these goals can be reached by following the statutory guidelines for will requirements and by applying common sense and skill to the drafting process.

In Texas, the Probate Code governs the probate process, including the requirements for a valid will. Section 57 describes who may execute a will, and section 59 details the requirements of the will. In order to execute a will, a person must have “legal capacity.” This means that either the testator (person leaving the will) is eighteen years or older, has been married, or is a member of the armed forces. The statute further requires that the testator has “testamentary capacity.” Testamentary capacity is more amorphous than legal capacity. The only language the statute offers to explain testamentary capacity is that the testator must be of “sound mind.” This term has been further defined by Texas case law with the pinnacle case being Stephen v. Coleman, 533 S.W.2d 444 (Tex. Civ. App.—Fort Worth 1976, writ ref’d n.r.e.). Essentially, testamentary capacity boils down to whether the testator has the ability to understand everything that he is doing in relation to leaving a will and the impact that act will have. A testator must also have “testamentary intent,” which simply requires that the testator intends for the document to be his will.

Other formal requirements are mandated by the statute. The will must be signed by the testator. If the will is attested, as opposed to holographic (entirely hand written by the testator), it must be signed by two witnesses who are older than fourteen. The witnesses must sign at the bottom of the will (subscribe) and must sign the will in the presence of the testator. These requirements seem very simple, yet they only provide the bare minimum of what a will must contain. A will that is valid, and therefore follows all of the statutory guidelines, is not necessarily uncontestable. Great care and skill are often required in drafting a contest–safe will. For further reading, see the Texas Probate Code (especially Chapter IV), accessible at http://law.justia.com/codes/texas/2005/pb.html.