Estate Planning FAQ: On A Need-To-Know Basis
What do I need to incorporate into my will or estate plan?
Simply put, everything that you own. Typical assets found in our clients’ estate plans include:
- Individual property
- Real estate (whether located inside or outside of the State of Texas)
- Financial accounts or cash
- Insurance policies
- Retirement pensions and plans
A thorough inventory of all your belongings and assets is the first step in proper planning, followed by deciding who should inherit what. This can be a complex process, but an experienced attorney can help with choosing your heirs strategically.
What are the requirements for a valid will in Texas?
In Texas, there are a handful of important stipulations that must be met for your will to be admitted to probate in a Texas probate court:
- You must sign the will in the presence of at least two witnesses.
- Your will must be “in writing” meaning that a physical copy of it exists and is accessible.
- You must have a sound mind and memory; an understanding of what it means to make a will, as well as comprehension of the extent of your property and relationships, is essential.
- The will must be made without “undue influence.” In other words, you should not be drafting the will under duress from someone who has a degree of power over you.
- You must be at least 18 years old (although this does not apply if you are married or serve in the military).
What is the difference between a will and a living will?
A will helps you prepare and provide for your family following your death, but a living will relates to your end-of-life medical care. A living will is also known as an advanced health care directive and a directive to physician.
The living will communicates your wishes about medical treatment if you have a condition that is irreversible or terminal and if you cannot speak for yourself.
A living will can instruct medical professionals to keep you alive at all costs, it can stipulate that you do not wish to be resuscitated, or it can designate a trusted representative to make health care decisions on your behalf if you do not have a Medical Power of Attorney.
While this is extremely helpful to the elderly and infirm, adult college students who are financially dependent on their parents can also benefit from a living will in the event of an emergency. For example, if your adult child goes to college in a different state and is incapacitated, a living will could save precious time in the decision-making process.
Are holographic wills legal in Texas?
Holographic wills, also referred to simply as handwritten, are an option in Texas. To be legally valid, a handwritten will must be drafted entirely in your own handwriting and signed by you. If these two requirements are met, you do not need witnesses to make the handwritten will valid.
However, estate planning attorneys don’t generally advise their clients to make a holographic will. A holographic will leaves you open to challenges during the probate process and can be fraught with errors or unclear wishes. The probate of a holographic will can be difficult and expensive for the decedent’s family members.
What are the requirements and responsibilities of an executor?
An executor, or the representative you choose to enact your last wishes and manage your probate estate, must meet certain requirements if they are to be accepted by the Texas court. They must:
- Be at least 18 years of age
- Be mentally and physically able to carry out their duties as executor
- Have never been convicted of a felony
- Deemed “suitable” by the court. Texas’ laws involving executors dictate that they be of sound mind and the Judge might reject an executor on the basis of suitability
- If a non-resident of the State of Texas, the executor must appoint a resident agent to accept service of process
The duties of an executor include all tasks related to administration of an estate and overseeing the distributions of assets to heirs. This includes, but is not limited to, giving notice to the deceased’s creditors, paying debts of the estate, maintaining and protecting assets, completing pending legal action on behalf of the estate, filing tax returns and more.
If you have been named executor of an estate, or are planning to name one soon, our attorneys can help you understand the responsibilities as they apply to your estate and advise you on how best to carry them out.
When should I update my estate plan?
Some people think about their estate plans as evergreen, but that is typically not the case. Estate planning laws change, as do family compositions, and it is imperative to update your estate plan to reflect those changes.
While changes to the law can be somewhat cyclical, changes to your life and family are easier to pinpoint. You should update your estate plan if:
- Someone in your family divorces or gets remarried
- Birth of a new family member
- Child becomes a legal adult
- One of your named heirs passes away
- Your assets increase significantly
- You move to a different state
If you are unsure if updating your will or estate plan is necessary, don’t worry. Our attorneys can help you with the proper adjustments to your plan.