Having a will in place in the event of a death is a standard step toward protecting a person’s assets and ensuring that property is transferred as intended. To ensure the deceased’s wishes are observed, it is important to work with an attorney who specializes in estate planning and wills.

Why You Need A Will and What Happens If You Don’t Have One

You may insist you don’t really need a will. But knowing what happens if you don’t have one could change your mind.

According to Texas law, without a will an individual’s property can be distributed as dictated by intestacy law. This essentially allows the deceased’s property to go to their closest living family members, with spouses and children at the front of the line. Texas has systems in place that will find an heir, no matter how removed. The cost of this will be taken from the assets of the estate. If descendants are difficult to locate, the property may sit in trust or a registry of the court for some time. Eventually, if the assets are not timely claimed, the state may be able to take possession of property.

What Wills Do

A will, sometimes referred to as a last will and testament, is designed to allow individuals to posthumously control disposition of their assets. The primary functions of a will in Texas are:

  • To name beneficiaries (people or organizations)
  • To name a legal guardian for minor children
  • To determine the distribution of assets
  • To name an executor of the will to assist with managing the estate of the deceased

In Texas, for your will to be valid, you must:

  • Be age eighteen or older, legally married, or an official member of US armed forces
  • Be of sound mind or possessing the mental clarity to understand all aspects of drafting a will
  • Sign the will in the presence of two credible witnesses
  • Have witnesses sign the will in your presence

Types of Wills

Each state in the United States has their own laws regarding wills. In Texas, there are three primary types of wills that the state usually recognizes:

Formal Will

This type of will is usually drafted with the help of an estate planning attorney who has an intimate understanding of wills and the probate process.

Holographic Will

This type of will is usually written by the individual whom the will is being created for. This type of will may be more susceptible to being contested.

Nuncupative Will

Of all three types of wills listed here, this could be the least ironclad as it is often an oral agreement made by an individual shortly before their passing.

In order to secure a will’s validity and limit the possibility of it being contested, it can be wise to hire an attorney experienced in estate planning to draft a formal will.

Can Wills Be Contested?

It is possible for a will to be contested; however, certain conditions must first be met, and the process is typically drawn out, expensive, and often emotionally turbulent for family members of the deceased.

The party contesting a will must be able to prove to a court that a will is invalid, and that usually requires proper legal representation. This can include proving:

  • A will has been forged or has incomplete signatures
  • Lack of mental capacity of the individual creating the will
  • Undue influence in regarding what is in a will and who receives the property
  • Fraudulence
  • Unobserved formalities

Why It’s Best to Have an Attorney Be Part of the Will Process

Texas law is clear about the types of wills it recognizes and what a will needs to be considered valid. In order for an individual to have more peace of mind that their assets and property will be distributed specifically as they wish, it is recommended that they enlist the help of a reputable attorney in drafting a formal will.

By working with an attorney, individuals can have a higher degree of confidence in the validity of their will due to the legal nature of this document and how it is viewed by a Texas court of law. An attorney also understands the need for inclusion or exclusion of certain phrases in order to clearly communicate an individual’s wishes.

One of the biggest mistakes an individual can make in not working with an attorney to draft their will is misunderstanding exactly what items and assets can be included. This could result in an asset or item going somewhere other than where the individual intended it, or if the inclusion of that item in the will was not valid to begin with.

For those who have extenuating circumstances surrounding their lives, an attorney is essential. Some situations that may complicate the will process can be a remarriage, minor aged children, or even owning a business.

Do not leave the things you have worked so hard for up to chance. Hire a respected Houston attorney who specializes in wills and estate planning today to ensure that your chosen beneficiaries are well provided for in your absence.