Why do I need a will?
1) To decide who gets your property; if you die, without a will, then your estate is distributed to your heirs as determined under state law.
2) Your family does not incur the cost of a guardianship which is very important if you have minor children.
3) Your family does not incur the cost of a dependent administration which requires permission of the court to dispose of your property.
4) A trust can be specified to manage your estate for the benefit of your minor children until they reach a specific age.
What does not pass in a will?
1) Insurance policies do not typically pass in a will. You should ensure that your policy specifically states who your beneficiaries are. If your children are your beneficiaries and a trust is set up in your will, then they will manage the insurance proceeds for your minor children.
2) Real estate passes to whoever jointly owns the property that holds right of survivorship (such as a spouse) without going through probate.
3) Texas is a community property state and you can not will away your spouse’s community interest in your property.
4) Texas is a homestead state and you can not will away your homestead if you have a spouse and/or minor children.
5) Joint bank accounts should be set up “with right of survivorship” to ensure that the joint account holder receives the funds in the accounts.
6) Other property should be designated as “POD” (payable on death) or “TOD” (transferable on death) in accordance with your interest in the property.
What is “per stirpes” and “per capita”?
1) Per stirpes means that if a beneficiary in your will dies before you, their portion will be given to the alternate beneficiary or beneficiaries. For example, if you leave ½ of your estate to each of your two children and they have two children, if they die before you, their share will be equally divided among their children leaving ¼ to each child.
2) Per capita means that if you leave ½ of your estate to your two children and one of them dies, the remaining child receives their portion.
Can I designate certain items to certain people?
Yes. In Texas, you may dispose of personal property at your discretion. These do not have to be included in your will. You may list these items and their beneficiaries as a signed and dated attachment to your will and if you change your mind or acquire new items, you may amend the attachment.
Can I disinherit members of my family?
Yes, as long as these members are mentioned in your will. However, Texas is a community property state and spouses automatically inherent ½ of your community property. It is highly recommended that you consult with an attorney to ensure that the proper wording is used if you wish to do this.
Additional documents to be considered:
Statutory Durable Power of Attorney
A Statutory Durable Power of Attorney designates someone to manage your financial affairs if you become incapacitated.
Durable Power of Attorney for Health Care
A Durable Power of Attorney for Health Care designates someone to make health care decisions for you if you become incapacitated.
Directive to Physicians
A Directive to Physicians is instructions to physicians treating you to withhold life-sustaining remedies if you have a terminal or irreversible condition. This document must be witnessed by two parties and made aware to your physician as well as included in your medical file.