A Will is the corner stone of estate planning. I recommend that everyone have a Will. A “Simple” Will is sufficient for almost everyone and addresses most, if not all, of their needs. A Will provides your written instructions as to the division and distribution of your assets following your death. A Will names people to settle your affairs and to serve as either trustees or guardians for your children and loved ones. A Simple Will includes provisions naming guardians for any minor children and creates a trust for any minor, younger adults, and incapacitated adults who inherit.

The person creating the Will is referred to as the “Testator.” In Texas, for a Will to be valid, when the Will is created, the Testator must:

• Have capacity (ability to understand the decisions the Testator is making),
• Have the intent to create a Will,
• Sign the Will in the presence of two witnesses, and
• Thereafter not revoke the Will.

If each of these elements is satisfied, then the Will is a valid document to control the disposition of the Testator’s estate.

The Testator can layout a variety of methods for the division of their estate. The Testator can leave gifts of certain dollar amounts to various individuals or institutions or can divide his estate into percentages or shares.

A well-drafted Will is drafted by a knowledgeable Texas attorney, signed by the Testator in the presence of two witnesses, and contains a “Self-Proving Affidavit” signed by the Testator, his two witnesses, and a notary. The Self-Proving Affidavit makes it easier to probate the will when the Testator passes away.

Large estates are subject to Federal Estate Taxes and require a “Tax-Planned” Will. Only estates over a certain value are subject to estate taxes. For a person who happens to die in 2023, this amount is $12.92 million per person. The amount changes every year. Texas does not have a state estate tax.

Including tax planning in your Will can save your beneficiaries enormous amounts of money in estate taxes. While Tax-Planned Wills are slightly more complicated (and marginally more expensive), they are essential if you face potential estate taxes. For example, with a Tax Planned Will, a married couple can effectively double the amount they can pass on to their children without out facing estate taxes.

You authorize the person you want to make financial decisions on your behalf. In completing this document, you make an important choice: Whether to make the power of attorney effective immediately or only if you become disabled. The advantage of making it effective immediately is that banks and other institutions are more likely to accept it. However, this gives your agent significant power to affect your financial life, and some people are uncomfortable with that. You should consult with an attorney to advise you about this choice.

This Power of Attorney you decide who will make medical decisions for you if you are incapacitated. These decisions include consenting to surgery, checking you into a nursing home or hospital, obtaining medical records, and terminating life-sustaining treatment.

This document is sometimes called a “Living Will.” The Directive allows you to communicate to your family and medical personnel your decisions about life-sustaining treatment. If you are suffering from a medical illness or condition that you will not survive, the Directive informs the doctors whether you want them to provide all life-sustaining treatments or only those treatments needed to keep you comfortable. The document is a great gift to your family when faced with this situation. While this process is never easy, everyone is far more comfortable knowing your wishes.

This document serves as a backup to the two powers of attorney discussed above. The powers of attorney I prepare avoid the need for ever going to court. Sometimes, however, it is necessary to ask a court to appoint a guardian for you. This Declaration helps ensure the court appoints the person you want to be your guardian. (You can also express your desire that the court not appoint a specific person to be your guardian.)

Trusts are used for many reasons in estate planning A testamentary trusts is created by your will, typically to have designate the person you want to manage your gift for the person to whom you are making a gift. For example, if you are leaving a portion of your estate to your children, you might use a trust so that the trustee handles the money until your children reach a certain age that you determine. Click here for more information about some other types of Trusts.

The information above is a high-level discussion of some aspects of estate planning. It is not legal advice. If you need legal advice, please contact me for a consultation.

Perhaps, but it is a very bad idea. Many of the DIY Wills or online forms that I review are invalid or do not actually carry out what the Testator intended.  It is just not worth the risk. Internet fill-in-the-blank Wills usually cause delays and extra costs after you die, even if they are valid. This causes great stress on your family and heirs, at a time that is already difficult.

A Will is a unique legal document. Texas law has very specific requirements about what a valid Will must contain and formalities that must be followed. If not, the Will is invalid and has no legal value. It is like dying without a Will at all. Only an attorney can legally draft a Will for another person.

An internet Will may seem like an inexpensive and safe option. However, my experience is that it can end up costing your estate many thousands of dollars and may result in someone getting your estate other than the person you intended. Choosing the wrong wording in your Will can be disastrous.

I strongly encourage you to choose a Texas attorney, with estate planning experience to draft your Will and other estate planning documents.