The vast majority of Americans are familiar with the concept of a Will, and while the majority of Americans understand the need for a Will, a large percentage never make one or consult a wills lawyer to draft one for them.
Wills can take a variety of forms and can be used for a variety of purposes in Texas. In general, however, a Will is used to spell out how a person wants their assets divided at the time of their death. It may also address the payment of debts, conditions upon certain gifts to certain individuals, etc. The Will should be drafted as part of an overall estate plan for the person or married couple considering the Will. Please refer to the Estate Planning section of this website for more information about a complete Estate Plan.
At its core, a Will has traditionally been the foundation of any estate plan. In addition to the Will, someone should consider powers of attorney, living Wills, trusts, life insurance, non-probate assets, etc. in their overall estate plan. As has been discussed in the Estate Planning section of this website, all of these elements of the estate plan should be carefully coordinated to provide the maximum benefit.
The person who creates a Will is generally known as the “Testator.”
In the following pages, we discuss each of the following topics:
- Simple Wills: A simple Will contains basic provisions related to the disposition of a person’s estate upon their death. The Will also appoints someone to handle the Testator’s final affairs after death. Although the simple Will does not address estate tax concerns, it is the most appropriate option for someone whose estate does not present estate tax concerns.
- Wills with Tax Planning: In some cases, the Testator’s assets are great enough that they require consideration of various alternatives to avoid estate taxes at death. In these cases, the use of a Will that incorporates tax planning provisions is most appropriate. These provisions allow the Testator to use the assets during their lifetime, but upon death, the assets are distributed in a manner consistent with the tax-savings goal of the tax provisions in the Will. Although a Will with tax planning provisions is obviously more complex than a Simple Will, it is appropriate for someone who has tax concerns.
- Powers of Attorney: Anytime that someone is looking at their estate plan, they should consider the creation of powers of attorney to appoint someone to act for them in the event of their incapacity. In Texas, powers of attorney are created for both medical and financial concerns, and they are very important should something happen requiring that someone step in and make decisions for you.
- Living Wills: In the wake of the Terry Schiavo controversy, the concept of Living Wills has become very important to many people. The Living Will addresses your desires regarding life-support treatment in the event that you are not able to communicate these decisions to a doctor.
- Handwritten Wills: Not surprisingly, many people have questions about whether or not a handwritten Will can be upheld as valid. Although they can, handwritten Wills require very specific elements. Without them, the handwritten Will is not considered effective and will not be used to dispose of the Testator’s assets at death.
- Frequently Asked Questions: We have found that many of our prospective clients frequently have questions and misconceptions about Wills and the disposition of their estates. In this section, we have attempted to answer some of those questions for you. If you have questions that we have not addressed in this section, please feel free to Contact Us with your questions, and we will be glad to answer them.
Many clients ask the attorneys at Ford+Bergner about what happens if someone dies without a Will. We routinely advise clients that the probate process when someone dies without a Will is much more complex and expensive. Instead of the assets being divided according to the provisions of the Testator’s Will, the assets are divided according to the provisions of Texas law. Even if the Testator had expressed desires prior to their death about the division of their assets, those desires are not followed unless they are contained within a well-drafted Will.
The costs associated with creating a Will pales in comparison to the problems and cost that can arise from not having a Will. We highly recommend that every adult in the United States should consider a Will, and we advise our clients and prospective clients to seek competent advice from a lawyer who practices in this area before creating a Will.