The Basics about Texas Wills

A Last Will and Testament is a document that can be used to control who gets your property after your death, who will be guardian of your minor children and control the property that you leave to your children, and who will manage your estate upon your death.

A will becomes effective ​only after your death. When you sign a will in accordance with Texas laws, it is ​valid. But it does not become effective until after you die. Many people think that a power of attorney can be used to give your property away after you die. This is not true. A power of attorney dies with you. That is, when you die, the power of attorney is no longer effective.

Before making your will, you should understand how a will works and what a will can and cannot do. If you do not understand these things, your wishes may not be carried out and people you do not intend may end up with your property.

How a Will Works

A will serves a number of different purposes. Each purpose is important and depending on your particular circumstances, having a will can be crucial.

The most obvious role of your will is to direct the disposition of your property after your death. You can give specific gifts of personal items to individuals, make specific ​bequests (or gifts) of money to individuals, and allocate the balance of your assets among individuals in varying percentages. You can also leave gifts to churches, schools, and charities.

Without a will, you have no control over who will receive your property and how much they will receive. If you do not have a will, who your beneficiaries will be and the share of your property to which they are entitled is established by Texas law—not your wishes.

Texas calls the person who represents your estate and handles the probate process the ​executor. An executor is the person who gathers together all of your assets and distributes them to the beneficiaries. A will allows you to decide who will be the executor of your estate. If you do not name an executor in your will or if you do not have a will, the executor of your estate will be appointed by the court. Texas has a statute that establishes who can be appointed as executor and in what order. While family members are generally favored under the statutes, it is possible that an unrelated person, a bank or trust company, or even a creditor of your estate can be appointed executor of your estate.

With a will, you can provide that your executor does not have to post a surety bond with the court in order to serve. This can save the estate a sizeable amount of money. The executor can also be granted broad powers in addition to the powers given to executors by law to handle estate matters. If you own a business, you can designate that the executor has full authority to operate the business without posting a bond or employing a professional business advisor.

Perhaps one of the most overlooked purposes of a will is the designation of a ​guardian for minor children. In a will, you can designate who will be entrusted with the care and upbringing of your children. This way, you can avoid fights among relatives and make sure that the person who is most familiar with you and your children will raise them. If you do not appoint a guardian for your minor children, Texas law designates who will be eligible to be appointed guardian. Often to assist the court with this determination, a social study will be conducted by the child services department to evaluate who is best suited to raise your children.

Many people have definite ideas about who they want to raise their minor children but are not confident in the guardian's ability to manage the children's inheritance. In your will, you can also designate a person to act as guardian of the children's financial inheritance.

Your Will and Probate

Some people think that a will avoids the probate process when in fact it does not. However, having a Last Will and Testament greatly streamlines the probate process and reduces the probate fees for your estate. A will is the document used in the probate process to determine who receives the property, who is appointed to be guardian of minor children, and who is appointed to act as executor of the estate.

Probate is the legal process by which property is an estate is transferred to the ​heirs and ​beneficiaries of a deceased person (the decedent). Heirs are persons who are entitled to receive a decedent's property if the decedent dies without a will. Beneficiaries are persons who are named in a decedent's will to receive property.

The probate process begins by presenting the will of the decedent to the judge or, if there is no will, by presenting a list of the decedent's property and a list of the people to whom it is proposed that the property be given.

Property That Passes by Will

Property that is in the name of a person will be transferred under the terms of the person's will unless it falls within certain exceptions.


Our Law Firm

Please call our law firm if you have questions about estate planning, a Last Will and Testament, or probate matters in general. The law offices of Dale O’Neal are in Fort Worth Texas and we serve residents of Fort Worth, Arlington and lll of Tarrant County. Please call Dale O’Neal at 817-877-5995. We draft wills as part of a complete Estate Planning Package for Texas citizens.

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