Wills & Estates

Although death is never a pleasant subject to imagine, wills allow you to control how your property passes when you die.  Without a will and proper estate planning, your property passes according to State law.  State law does not play favorites nor take into consideration the relationships you have had with others in life.   Hence, planning for death now can give you infinitely more control over the inevitable.

Law Offices of Tristan C. Robinson, P.L.L.C. Wills, Trusts, and Estate Planning Division

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Disclaimer: Our law office has provided the below information as a point of reference to help you understand the basic/common wills and estates issues that we deal with and to help you answer basic questions. The below information is not a substitute for consultation with an attorney and should not be considered as much. The below information does not constitute our firm offering you legal advice.

Intestacy (Dying Without a Will)
Trusts
Wills


Intestacy (Dying Without a Will)

  • What does intestacy mean and what is the gist of how it works?
    • When you die without a will in Texas, you are referred to as “intestate” and your property will be distributed based on State laws. The State will determine who your heirs are according to the so-called intestacy statutes, and then distribute your property differently depending on whether that property is considered community property or separate property. Generally, separate property is property owned prior to marriage, or acquired during marriage through gift or inheritance. Damages awarded from a personal injury claim, other than loss of earning capacity, are also considered separate property. Community property is considered all property other than separate property which is acquired during marriage by either spouse.

    • Community Property – If you die without a will, your community property will be distributed depending on who survives you:

      1. If you are survived by your spouse and children (or descendants of deceased children), and all of those children are your spouse’s or are descendants of deceased children (i.e., grandchildren) by you and your spouse, then all of the community property goes to your surviving spouse. It does not matter if the surviving spouse has a child that is not your descendant, so long as all of your children are descendants of both you and the surviving spouse.

      2. If you are survived by your spouse and children, some of whom are not children of your spouse, half your the community property will be divided equally among the surviving children, and the other half to the surviving spouse.

      3. If you are not survived by children or descendants, but are survived by your spouse, then spouse takes 100% of the community property.

    • Separate Property – If you die without a will, your separate property will be distributed depending on whether it is real or personal property:

      1. If you are survived by your spouse and children (or descendants of deceased children), and all of those children are your spouse’s or are descendants of deceased children (i.e., grandchildren) by you and your spouse, then subject to the Homestead and exempt personal property for your spouse, separate personal property passes one-third to the spouse and two-thirds to the children, while separate real property passes to the children and your surviving spouse receives a 1/3rd life estate.

      2. If your spouse survives you, but you have no children or other descendants, then subject to the Homestead and exempt personal property for your spouse, all separate personal property will pass to your spouse, while one half of your separate real property passes to your spouse and the other half of your separate real property passes to your parents (if alive) or other collateral relatives (i.e., brothers, sisters, etc.) or their descendants.

      3. If you are survived by children or their descendants, but no spouse, then all separate personal and real property passes to them.

      4. Beyond the above examples, the intestacy statute provides for inheritance by parents, siblings, and even grandparents given that they may be the only surviving heirs. Note that in Texas it not matter how remote the familial relationship is–they could potentially be an heir-at-law in certain circumstances.

  • What else happens if I die without a will?
    • Most of us have an idea of how our property should be divided at death. Without a will, you are subject to the public policy standards summarized above and have no discretion in how particular items you wish to devise at death are distributed.

    • In addition, the Texas intestacy statute does not take into consideration close friends or colleagues whom you may wish to inherit.

    • Without a will, you cannot disinherit any particular person who would otherwise receive under the intestacy statue.

    • Without a will, your estate may take much longer to distribute since a court must get involved. This is an expensive process that can leave some smaller estates almost entirely depleted by the time the distribution of the estate has actually occurred.


Trusts

  • What is a Trust?
    • A trust is similar to a will in that it distributes property in the manner prescribed by the person establishing the trust. A trust can be established during life or after you pass by your will. Trusts can be revocable or irrevocable, depending on how you wish to establish them. Trusts are not only for the wealthy and can be a cost-effective way for you to manage disbursement of your property during life or after death. A trust can be an effective way to manage property for the benefit of minors or special needs persons who are incapable of managing their own finances. Alternatively, a trust can be used to prevent a spendthrift child from squandering their inheritance and make sure that the inheritance is preserved for the reasons the person establishing the trust intended.

  • What are the basic requirements for a valid trust in Texas?
    • To have a valid trust, the settlor (the person establishing the trust) must have the intent to create a trust and deliver property and transfer legal title to that property to a trustee (the person in charge of safekeeping the property) for the benefit of one or more beneficiaries. The settlor must have a lawful purpose for creating the trust (i.e., not simply to avoid creditors) as well as the capacity to transfer the property to the trustee. Usually, the trust must be in writing unless it only deals with personal property.

  • Will my trust fail if I do not name a trustee or if the trustee I have named does not want to handle my trust?
    • No. If no trustee is named or the person who is named declines the responsibility, the court can appoint a trustee.


Wills

  • Why do I need a will?
    • The answer to this question is subjective. People write wills for many different reasons. The first thing you want to do is ask yourself, “What happens if I die without a will?” Our firm has provided a short synopsis regarding intestacy (the law on death without a will) above that can help you get started with your research.

  • What can a will do for me?
    • A will is a legal instrument which states how the testator (a person who leaves a will at death) wishes his or her property distributed at death. A valid will avoids many of the problems that may arse from dying without a will and allows a person to leave property to the persons he or she desires. A will not only names the recipients of the testator’s property, but also can name the individual who will manage the property and care of minor children. If the estate is large, a will can contain provisions that minimize estate taxes.

  • What are the requirements for executing a will?
    • Texas recognizes holographic (handwritten) wills and formal (typewritten) wills. Whether holographic or formal, the testator must meet the following requirements to execute his or her will:

      1. The testator is at least 18 years of age, is or has been lawfully married, or is serving in the armed forces;

      2. The testator must be of sound mind at the time the will is executed;

      3. The testator must not have been unduly influenced, either by coercion or deception, to write the will; and,

      4. The testator must have what’s called “testamentary intent”, which generally means a present intent to pass property at death

    • Additional Requirements for Holographic/Handwritten Wills
      1. To be valid, a holographic will must be wholly in the handwriting of the testator, even though that handwriting can be on virtually. Typewritten words will not be incorporated into a holographic will.

      2. The testator must sign the holographic will.

      3. Words sufficient to reflect the testator’s present intent to dispose of property at death/show testamentary intent must also appear on the holographic will.

    • Additional Requirements for Formal/Typewritten Wills
      1. To be valid, a formal will must be signed by the testator or another person at his or her direction and in his or presence;

      2. The formal will must be attested by two credible witnesses who are above the age of 14; and,

      3. The will must be signed by the two witnesses in the presence of the testator.

  • What are the dangers in writing my own will by hand?
    • While it may seem easy enough to write your own will by hand, the requirements above are not a substitution for seeking a consultation with an attorney. Complications arise when laypeople attempt to write their own will, especially in the event that not all property is disposed of at death. For example, an incomplete holographic will may result in a situation where the testator ends up disposing of part of their property according to their wishes and part of their property under Texas intestacy law. There are also risks involved when a lay testator leaves out key language relating to the executor’s duties or waiver of bond which may cause unnecessary delay or expense in administering the estate. Accordingly, the best practice is to have a will drafted by an attorney.

  • I have a will already, is there any way to amend it?
    • Yes. You should contact an attorney to help you draft a codicil, which is a legal instrument that effectively revokes all or part of your previous will. Take note that making handwritten revisions or cutting out portions of your previous will may be entirely ineffective, so the best practice again is to consult with an attorney when you wish to revise your existing will. Note also it is critical to seek the advice of an attorney when you have new heirs (by childbirth, adoption, or otherwise), divorce, or have a similar change of circumstances.