The term “will” is commonly used in estate planning. However, a will can refer to a few different estate planning instruments. There are also different types of legal wills in Texas. So if you are wondering what types of wills are needed in Texas, read on to learn more.
Last Will and Testament
A last will and testament, more commonly referred to as a will, is a legal document in which you outline how you want your property distributed upon your death. If you die without a will in Texas, your property still gets passed on to your heirs. However, because the court won’t have any guidance on your specific intentions, a set of default rules apply. These default rules are called intestacy laws, and they determine where your property will go based on what family members you leave behind.
For example, if you die leaving only children behind, your children will inherit all of your assets. However, if you leave behind a spouse and children, your spouse inherits all of your community property plus one-third of your separate personal property. Your children inherit the remaining two-thirds of your separate personal property. The laws of intestate succession get more complex the more family members you have.
In a will, you can also name a guardian for any minor children. But keep in mind that in Texas, guardianships are referred to as conservatorships.
Are Handwritten Wills Legal in Texas?
Now that we know what wills are, you may still be wondering, what are the different types of wills, and what are the differences in Texas? One type of will is a handwritten or holographic will. Holographic wills are permitted in Texas, provided they comply with certain requirements. In Texas, the testator (creator) of any will must meet the following criteria:
- You must be at least 18 years old, married, or in the military;
- You must be of sound mind;
- You must command an understanding of the property you own;
- You must know that you are drafting a will; and
- You must understand the impact of drafting a will.
Additionally, the top line of your will must read “The Last Will and Testament of [your full name].”
Holographic wills must also meet the following requirements:
- They must be entirely in your own handwriting; and
- They must be signed by you.
Notably, there is no notary or witness requirement for holographic wills. While this makes them much easier to create, it also opens the door to will contests. A will contest occurs when someone challenges the validity of a will. For example, someone may claim that a will was not in your handwriting or that you were not of sound mind when you created it. Without any witnesses, it is challenging to disprove these arguments. For this reason, it is generally advisable to create a formal will through an estate planning attorney.
What Is a Living Will?
The other type of “will” in Texas is a living will. A living will is an entirely different type of estate planning document that has nothing to do with property distribution. Instead, a living will outlines the medical care someone wants to receive if they become incapacitated or terminally ill and cannot convey their wishes to their medical providers. For example, if you get into a car accident and doctors determine you need life support, those doctors won’t know whether you want life-sustaining treatment unless you have a living will. In this situation, doctors might rely on family members to obtain this information. However, unless you shared your desires with them at some point in the past, they too may not be aware of your wishes.
Aside from clarifying the type of care you want to receive if you become incapacitated, a living will also lessens the burden on your family during a very difficult time.
Are You Interested in Learning More About the Types of Wills in Texas?
If you do not yet have a will or it has been years since yours was last updated, reach out to Robbins Estate Law. At our Texas estate planning law firm, we believe that estate planning is about families, not money. Along those lines, we offer families a collaborative team approach that provides them with predictable, quality advice to achieve their goals. We also offer free consultations to all prospective clients. So, if you have questions about the types of wills in Texas, schedule a consultation, and we’d be happy to help. Give us a call today, or connect with us through our online contact form.
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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