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Overview
A will is the most common document used to specify
how an estate should be handled after death. Anyone
designated to receive property under a will is called a
beneficiary. A will can be simple or elaborate,
depending upon the size of the estate and the wishes of
the person who makes it, called the testator. Many types
of post-death instructions can be described in a will. A
will can describe who should receive specific items of
furniture, art work, or jewelry. A will can name a
guardian who will take care of minor children should
there be no surviving parent. A will can disinherit a
child if the testator does not want the child to receive
any part of the estate. The options for what a person
can do with a will are varied but limited.
Requirements for a Valid Will
Each state sets slightly different formal
requirements for the creation of a legal will. In Texas,
any person who is at least 18 years old or older is or
has been lawfully married; or who is a member of the
armed forces of the United States, the auxiliaries
thereof, or the maritime service at the time the will is
made can make a legal will. In addition, he or she must
be of sound mind, which means that the person has no
disability that prevents him or her from understanding
the full nature of the will document. In Texas, a will
must be in writing and must be signed by the testator in
person or by another person for the testator at the
testator's direction in the testator's presence. The
will also must be witnessed, in the special manner
provided by law, by at least two other people. A
handwritten will, often called a holographic will, is
valid in Texas provided that it is wholly in the
handwriting of the testator. A will is valid until it is
revoked or superseded by a new will. Individual
provisions can be changed by a codicil.
Personal Representative
A will typically appoints someone called a personal
representative, or executor, to carry out the specific
wishes of the person who has died--the decedent. The
personal representative should be a trusted friend or
family member who should be made fully aware of his or
her duties before the decedent dies. Under state law, a
personal representative may not be incapacitated, a
convicted felon, a non-resident of Texas unless he or
she appoints a resident agent to accept service of
process in all actions or proceedings with respect to
the estate and files such appointment with the court, a
corporation not authorized to act as a fiduciary in
Texas, or any other person the court finds unsuitable. A
personal representative must do many things, including
collect and manage the decedent's assets; collect any
money owed at the time of death; sell assets, if
necessary, to pay estate taxes or expenses; and file all
required tax returns. Because a personal representative
is allowed to charge a fee for doing this work, choosing
a friend or family member who is also a beneficiary to
fill this role may be a good choice, as he or she may
not charge the full amount allowed by law. To ensure
that one's estate has a personal representative chosen
by the decedent, it is wise to name one or more
contingent personal representatives who can take over
the responsibilities of the primary personal
representative if the primary personal representative is
unable to assume the responsibilities of the position.
If a person does not name a personal representative in
his or her will, state law establishes the order in
which a probate court appoints persons to act as
personal representative.
Appointing a Guardian for Children
A person with minor or dependent children can name in a
will a guardian to care for those children should there
be no surviving parent. If a person fails to name
someone to assume the role of guardian, the probate
court appoints someone. The person chosen by the court
usually will be a close relative or friend, but it may
not be the person the parent would have chosen. As with
the selection of a personal representative, it is
important that the potential guardian understands the
provisions of the will and is willing to accept the
responsibilities of being a guardian. Also, it is wise
to name an alternate guardian should the primary
guardian be unable to accept the responsibility. Of
course, the selection of a guardian for children is
likely to influence how the parent wants to distribute
his or her property. Otherwise, a decedent's money might
go to one person while his or her children go to another
person. The parent may want to give property to someone
only if the recipient accepts guardianship of a child.
In this way, the guardian is given the financial
resources to care for the child.
Planning for Incapacity
People drafting wills often use the opportunity to plan
for the possibility of their own incapacity. By
preparing a document called a durable power of attorney,
they can give another person of their choosing full
legal authority to act on their behalf should they
become unable to handle their personal and financial
affairs. Without a durable power of attorney, a person's
family might need to go to court to have someone
appointed to handle the person's legal affairs. If a
durable power of attorney is made part of the will, it
is essential that the will be made known to family
members before the testator becomes incapacitated. If a
will is kept secret, locked away in a safe deposit box
until a person dies, it will be too late for the durable
power of attorney provisions to be useful.
Some people also use a document called a durable power
of attorney for health care to make health care
decisions in advance should they subsequently become
incapacitated.
Restrictions on Wills
In order to protect spouses and dependent children, some
states prevent a person from entirely disinheriting a
spouse or child without the consent of the one who is
disinherited. Under Texas law, however, a person may
disinherit any heir, including a spouse or dependent
child.
There are restrictions on wills in Texas. Anything owned
in joint tenancy with another person passes under a will
unless the joint tenants had earlier agreed in writing
that the interest of a joint tenant would pass to the
surviving joint tenants. No such agreement is inferred
from the fact that the property is held in joint
tenancy. Because there may be significant tax
consequences, these agreements or lack thereof should be
made only after consulting an attorney.
Other possessions are not considered part of the estate
because they already are promised to someone else. For
example, a testator cannot specify in a will that
someone other than the beneficiary of a life insurance
policy gets the benefits described in that policy.
However, a person can designate his or her estate as the
beneficiary of a life insurance policy. In this case,
the money from the policy will be added to other estate
assets and will be distributed according to the will.
Similarly, the money from a retirement plan goes to the
persons named in the plan, regardless of whether they
are beneficiaries in a will.
Laws designed to uphold public policy also limit what
can be done with a person's assets after death. For
example, conditions in a will encouraging someone to do
something illegal or immoral in order to inherit money
or property would not be enforced.
Changing and Updating Wills
The provisions of a will are valid until they are
changed, revoked, destroyed, or invalidated by the
writing of a new will. Changes or additions to a will
can be included in a document called a codicil. Codicils
must be written, signed, and witnessed in the same way
as wills. Wills cannot be changed simply by crossing out
existing language or writing in new provisions. In order
to avoid making a new will or codicil each time a
person's possessions change, a will can specify that
personal property is to be distributed according to
instructions outlined in a separate document. A person
can then revise the separate document as often as
necessary, without observing all of the formalities
required to change the will itself.
If someone dies with a will that is not up-to-date,
people may not be provided for adequately. For example,
a person chosen to be a personal representative or
guardian may have died or fallen out of favor with the
author of the will, or a favorite charity may no longer
be in existence. A significant amount of case law has
dealt with how a probate court is to proceed with a will
that has become unenforceable because of changed
circumstances. These headaches can be avoided if a will
is reviewed at least every two years and revised for
major changes in tax laws or for personal events such as
births, deaths, marriages, divorces, or significant
changes in the size of the estate. It is also a good
idea to review a will if its author moves to another
state, because the new state of residency may have
different inheritance and tax laws.
Dying Without a Will
If a person does not have a will or has not adequately
planned for the distribution of his or her estate at
death, survivors can face a complicated,
time-consuming, and costly process. Often survivors
wind up having to pay more taxes on their inheritance
than they would have paid had there been a will or other
estate planning tool. To provide for surviving friends
and relatives, or to support favorite causes or
charities, a person can plan for the distribution of his
or her estate after death. With planning, an estate can
be distributed as fairly as possible with as little tax
burden as legally allowed.
When a decedent leaves no will or fails to dispose of
all property through a will, the decedent is said to
have died intestate. When a person dies intestate, the
probate court steps in to divide the decedent's estate,
according to a formula known as the state inheritance
laws. Under the state inheritance laws, the probate
court uses formulas set by the legislature to divide a
deceased person's possessions among any surviving
relatives.
A probate court applying the state inheritance laws
first deducts from the estate the funeral expenses and
any unpaid medical bills up to five thousand dollars,
allowances made to the surviving spouse and children,
estate administration expenses, taxes, and other debts
owed.
After all the claims against the estate are paid, and if
the decedent has a surviving spouse and no children, the
surviving spouse is entitled to all of the personal
estate (all possessions other than land) and one-half of
the real estate of the decedent. The other half of the
real property goes to the decedent's parents or siblings
and their descendants. If there are no surviving
parents, siblings, or their descendants, then the
surviving spouse receives the entire estate.
In addition, the community property of the deceased
spouse passes to the surviving spouse if there are no
other descendants or if all of the surviving children
and descendants of the deceased spouse are also children
or descendants of the surviving spouse. Otherwise,
one-half of the community property goes to the surviving
spouse and one-half goes to the children or descendants
of the deceased spouse.
If there are children and no surviving spouse, the
entire estate is divided among the children and their
descendants. If all of the children are living, they
share in the estate equally. If one or more of the
children are deceased, their descendants split a share
equal to the share their parent would have received if
alive.
If there is both a surviving spouse and children, or
their descendants, the surviving spouse receives
one-third of the personal estate and the balance of the
personal estate goes to the children of the deceased and
their descendants. The surviving spouse also receives an
estate for life in one-third of the land of the
deceased, with remainder to the children and their
descendants.
If the decedent leaves neither a spouse nor children,
the estate goes to the decedent's father and mother
equally. If only one parent survives, then one-half goes
to the surviving parent and the other half goes to the
brothers and sisters of the deceased and to their
descendants. If there are no siblings or their
descendants, then the entire estate goes to the
surviving parent. If neither parent survives, then the
entire estate goes to the brothers and sisters and their
descendants. If there are no siblings or their
descendants, then the estate goes to the grandparents
and their decedents. The line of inheritance continues
in an attempt to locate the decedent's nearest kin.
Anyone entitled to inherit a portion of an intestate
decedent's estate is known as an heir.
Texas law distinguishes between kin of whole or
half-blood. If an estate passes to descendants of both
whole and half blood, each of those of half blood
inherit only half as much as each of those of whole
blood. If all of the descendants are of half blood, they
inherit whole portions.
One problem with relying on a probate court applying
state inheritance laws to distribute one's estate is
that it may not distribute the estate in the manner the
decedent would have wanted. State inheritance laws only
recognize relatives. The inheritance laws never permit
the probate court to support a decedent's close friend,
lover, or favorite charities. If the decedent leaves no
kin, the estate goes to the state. Clearly, for most
people writing a will is advisable.
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