Drafting a will in Texas is more complicated than people typically anticipate. You may have a general idea of how you would like your assets distributed, but you will need to consider a wide variety of factors during this aspect of estate planning.
These factors include:
- Your beneficiaries
- What each beneficiary will receive
- How and when your estate will be distributed
- Who will care for your dependents
At Labovitz Law Firm, our attorneys can help you navigate the complexities of drafting a will, the legal implications of every decision, and any obstacles that may arise during the process. Some believe they can successfully draft a will with the help of a DIY internet guide. But if you want to protect what (and whom) you value most, an experienced will lawyer can help you avoid the most common pitfalls of this procedure.
Wills: Well-Known but Frequently Misunderstood
A will is the most well-known aspect of estate planning. Most understand the purpose of a will is to dictate how the government handles your property and who receives each asset. However, many run the risk of making serious mistakes in their estate planning because of several common misconceptions. Additionally, the laws governing wills differ in each state. With decades of experience, our legal team can help you thoroughly understand Texas estate planning laws.
Here are a few common myths about wills:
- Without a will, the government will keep everything you own after you die. While every state has unique laws, dying without a will (known as intestate) will not automatically gift your assets to the government. However, the state will determine how it distributes your property, so if your intended beneficiaries are not your immediate family, you will need to draft a will.
- The oldest child of the deceased person is automatically the executor. In your will, you can designate the executor, and the court will appoint this person unless they are clearly unfit for the role. Even if you fail to designate an executor in your will, birth order is not a primary determiner. Typically, the court will select your spouse before any children. Siblings may become co-executors.
- The cost of probate will negate the value of your estate. Unless your estate is substantial, probate may be a cost-effective method of distribution. The process may become more expensive if the will is contested or if the executor is not properly fulfilling their obligations. Because each state has its own probate fees, looking into costs ahead of time can help you make the most appropriate decision for your estate.
- “Living will” and “last will and testament” are interchangeable terms. “Will” is short for “last will and testament.” A living will, however, refers to the advanced healthcare directive designating power of attorney if you become incapable of making your own medical decisions. You may become comatose after an accident, for example, or an illness such as Alzheimer's could render you legally incompetent. A living will can establish who will make healthcare decisions on your behalf.
- You only need a will if you have a large estate or you are old/sick. Properly drafted wills designate beneficiaries, prevent arguments between those beneficiaries, and ensure your dependents (including pets) continue to receive the care they need after you die. Tragedy can strike at any moment, and this form of estate planning can significantly lessen the emotional and financial burden on your loved ones.
- You don't need a will if you verbally explain your final wishes to someone you trust. Many states do not consider spoken (nuncupative) wills legitimate. In Texas, you can create a valid nuncupative will, but you must do it on your deathbed. If your estate is worth more than $30, you will need three credible witnesses.
- Drafting a will prevents probate. To avoid probate, you typically need a revocable living trust. Even if the terms are clearly outlined and undisputed, wills must be submitted to a probate court.
The Difference Between a Will and a Trust
The key difference between these two documents is the fact that wills go into effect after you die, while trusts are more flexible. Before deciding between a will and a trust, you will need to consider a few factors, including the size and value of your estate, the age and competence of your intended beneficiaries, and the anticipated taxes that may affect the value of your assets.
Trusts can help you avoid probate, but they are often much more complicated than wills. For those with smaller or simpler estates, avoiding probate may not be entirely necessary. Our team of attorneys can help you determine whether a will or a trust is best for you and your loved ones.
Contact Our Firm Today to Get Started on Your Will
It is never too early to plan for the unknown. You may have children or disabled adults in your care, a complex and substantial estate, or very specific final wishes. No matter your circumstances, we will draft your last will and testament with close attention to detail. If you need a team of attorneys committed to protecting your estate and beneficiaries as you are, get in touch with us as soon as possible.