Getting the Last Word

When you think about it, a will is kind of a strange thing. Once someone is no longer with us, why should we let them control what happens to their property? Shouldn't we just divide it up among their heirs to do with as they see fit? Why let someone tie up their property for a generation or more after they're gone?

There's a scene in Dickens's A Christmas Carol that comes to mind: During the visit from the Ghost of Christmas Yet to Come, Scrooge gets to see how the world reacts the morning after he dies which, rather conveniently, falls on Christmas. His former maid and butler are rummaging through his things, dividing his bedclothes between them while his body cools in the next room. The idea is that Scrooge was so thoroughly detested that he is not given even the basic courtesy of deciding how his possessions will be divided.

We have a strong and visceral sense that, whether you've lived as miserly as Scrooge in the beginning of his story, or as generously as Scrooge at the end of his story, you deserve the dignity of having your last wishes concerning your property honored. None of us want to be like Scrooge and have strangers haggling over our property when we die. And, with a properly drafted will, you don't have to worry about that.

Who needs a will?

The easy answer is everyone, but a more accurate answer would be anyone who has property or minor children. These are the most important jobs of a will: to dispose of your property after you die, and to appoint a guardian for your minor children.

What are some options for disposing of property under a will?

A will provides you a lot of flexibility in dividing up your property. You can simply give it to someone outright, or you can place it in trust for one or more beneficiaries. And, as long as you don't violate the rule against perpetuities, you can control your property for one or more generations after you die.

What else can you do with a will?

One of the most important things you do in your will is to appoint an executor to handle your estate. You can also appoint trustees for any trusts created under the will. And, you can provide for the care of a beloved pet or leave instructions for your physical remains. 

How does having a will affect the probate process?

In Texas, one of the main benefits of having a will is that it makes the probate process very quick and inexpensive. It usually involves about five minutes in court and filing a few documents to discharge your legal duties as executor in the courthouse. Without a will, your heirs may have to pay about twice as much to probate your estate.

What are the requirements for a valid will in Texas?

A will must be in writing, must demonstrate testamentary intent, and must be signed by two witnesses. Testamentary intent just means that the document needs to show that the signer intends it to take effect upon his or her death. If there are no witnesses available, you can prepare a "holographic" will entirely in your own handwriting, but this is not recommended.

What is a self-proved will, and why is it important?

You can have your witnesses sign a self-proving affidavit before a notary and attach it to the end of your will. The benefit of this is that your witnesses will not have to appear in court and testify when your will is probated. 

Can you prepare your own will?

In my experience, this is a very bad idea. There are a number of formal and technical requirements to ensure that a will is properly drafted and executed, and if you do not meet them all, your will may not be admitted to probate, meaning that your property will not be disposed of according to your wishes. It is well worth the modest expense of having a capable estate-planning attorney draft a proper will for you.