What Is a Last Will and Testament and Do I Need One?

Posted on: March 31st, 2012

A Last Will and Testament, or Will, is a legal document that outlines how the assets in your estate will pass to your surviving spouse, children, or other beneficiaries upon your death.  In my opinion, everyone needs a Will.  For some the Will may be the only asset transfer document they have; for others, they may have a Will in conjunction with a Revocable Living Trust. 

 In Texas it is relatively easy to draft a Will; you can even write your own.  However, if you choose this method, be forewarned that a Will must meet certain criteria in order to be valid under Texas law.  Most people choose to visit an estate planning attorney and have them draft their Will.  This is a much safer option because your attorney, if they practice in this area of law, will be familiar with the proper drafting and execution requirements.  Your attorney will also be able to counsel you on specific areas and topics that may have a huge impact upon your estate, surviving spouse, and beneficiaries. 

 In Texas, the testator (the one who makes a Will) must be at least 18 years old, or be married or be a member of the armed forces.  If you choose to draft your own, there are two ways to do it: 

  1.  It can be handwritten.  If you choose this method, it must be completely in     your own handwriting, signed and dated by you;
  2. You can type it.  If you choose this method then it must then meet other requirements.  Not only must it be signed and dated by you, it must   also be signed by two witnesses who are not related to you, and the witnesses should not be beneficiaries under your Will. 

  In addition, whether your Will is handwritten or typed, it can, and in my opinion should, have a self-proving affidavit.  This document, which is attached to the Will, is also signed by you and your witnesses, and a notary.  It serves to prevent the witnesses from needing to appear in court when your Will is offered for probate.

 Speaking of probate, a common misunderstanding that I hear often is the belief that if you have a Will, your estate will not have to go through probate.  In fact, if you have a Will you are almost guaranteed to go through probate.  I say “almost” because if your estate has nothing in it, or if all of your assets pass by beneficiary designation form or by a right of survivorship, then probate is not necessary. 

 A Will can be very simple and only be a few pages in length, or it can be quite extensive and complex.  Your Will can also be drafted so that your assets are left in trust to your surviving spouse or children.  This can be a great way protect those assets from their creditors and predators. 

 If you do not have a Will, or if yours is out of date, please consider contacting a reputable estate planning attorney. 

 David Meredith can be contacted through this website.

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