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Your Last Will & Testament (Monday, October 14, 2013)

 

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Estate Planning Series Continues

Welcome to entry #2 of our estate planning series—Estate Planning 101.  When it comes to “getting your affairs in order,” writing a Will is the quintessential first step.

 

If you will recall from Estate Planning 101, a Will is “used to dispose of your property in a manner you decide, instead of allowing the government to make those decisions.

 

A Whole New Level of Sibling Rivalry

Remember fighting with your annoying little sister over just about everything? She was jealous of the pair of shoes you just got or the boyfriend you were dating and frankly you wanted nothing more than to rub them in her face. 

 

Unfortunately your relationship with your sister only got worse as you got older. She lost touch with your family and you haven’t spoken in years.

 

Sadly, your dad just lost a tough battle with cancer and left behind a large oil business; which you have been running since your dad became sick. Over the last several months you had many a conversation with your dad where he indicated that the oil business was to be yours; but surprise...your dad didn’t leave a will. Now that annoying little sister wants what’s coming to her and without a will you are considered equal heirs under Texas law. She will get her half.

 

The scenario above is an extreme situation but is helpful in demonstrating the importance of having a will.

 

Texas Intestacy Scheme

“Dying intestate” is a fancy way of saying “dying without a will”. In Texas, when someone dies with no will, the division of their property will be determined based on the Texas Intestacy Scheme. In creating the Texas Intestacy laws, lawmakers attempted to make general divisions that an individual might make for themselves. But of course, the lawmakers don’t know you or your family and their “attempt” could be the exact opposite of your desires.

 

Texas law would assume all family members are still communicating and that a parent would want to split their estate equally among their beloved children. In the above situation, you can see the problems that would cause.

 

Unfortunately, the Texas Intestacy Scheme is like a “choose your own adventure” book where the outcome depends on how many relatives of the decedent are still living.  With so many variables, it is difficult to list all of the possible outcomes here.

—See Tex. Prob. Code § 38

 

What can you do about it?

Make sure you have a will. A Will is a document that puts the world on notice as to how you want your property to be divided upon your death. A Will can be as simple or complex as you want. It may be drafted by an attorney, it may be in your own handwriting, and it may even leave property to one child and leave out another. A Will is what you make it.

 

That’s not to say, however, that there are no legal requirements for a will.

 

Formalities of a Valid Will

There are two types of Wills, the Holographic Will, and the Formal Will.

 

Holographic Will

A Holographic Will is probably the simplest Will that can be written because it requires no attorney, legal training, or witnesses.

 

The Holographic Will must be wholly in the person’s own handwriting.  This means 100%.  This means that you can’t print a fill-in-the-blank form because everything must be in the person’s handwriting.  It must also be signed by the person making the Will.

—See Tex. Prob. Code § 60

 

Formal Will

A Formal Will is a document, generally drafted by an attorney, that must be signed by the person making the Will and two credible witnesses who have no interest in the Estate.  A Formal Will will likely distribute property through General Bequests and Specific Bequests, create contingencies, and address the remaining interests in case a beneficiary predeceases.

—See Tex. Prob. Code § 59

 

A Formal Will is also marked by a very formal Will Execution ceremony.  Because a Formal Will must be signed by two credible witnesses, it is customary to also execute a Self-Proving Affidavit, which allows the witnesses to state that they saw the testator sign the will, heard him say this was his last will and testament, and that he appeared to be of sound mind. This eliminates the need for the witnesses to appear in court when the Will is brought for probate.

—See Tex. Est. Code § 251.101

 

Where do you start?

Start by sitting down and deciding just how you want your stuff divided when you pass.  Some people draft their Will after some major life-event, often when a relative has angered them.  Don’t write your Will when you’re angry.  When you know who gets what, start planning for who else should inherit in case your primary predeceases you.

 

Once you know where your stuff is going to go, schedule a meeting with your estate planning attorney and start the process of drafting your Will.  Once your Will is properly executed, it will remain valid until it is revoked. Please remember that anytime a major life event occurs, i.e. a marriage, birth, divorce, or death, you need to revisit your will and ensure it still meets your wishes because a Will may be revised or revoked at any time by the maker.

 

If you still aren’t sure whether or not you need a Will, take our simple test.  Do I Need a Will?

 

--Authored by Kayla R. Wimberley, Esq.,

 

Matthew Harris Law, PLLC  - Estate Management Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

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