Dos and Don’ts of Making a Will?

Contemplating the creation of a will can stir up a range of feelings. This includes the reluctance to face our mortality head-on. However, recognizing the inevitability of life’s end is vital for the organized and deliberate allocation of one’s belongings and desires. This handbook sheds light on the dos and don’ts of making a will. While the task may appear daunting, it is indispensable for guaranteeing that your legacy and wishes are honored and carried out exactly as you intend.

Do and don'ts of making a will?

Dos and Don’ts of Making a Will: Starting Your Will – The Crucial Questions

Marital Status and Estate Division

Your marital status plays a pivotal role in how you divide your estate, especially in Texas. Texas law treats property owned by married couples uniquely under Community property laws. Essentially, most assets acquired during the marriage are considered jointly owned. Understanding this legal framework is vital as you begin drafting your will, ensuring your estate division aligns with your intentions.

Children: Present and Future

When drafting your will, reflect on your current family structure and any changes that might occur:

  • Number of Children: List all your children and consider their needs, particularly if any have special requirements or are minors.
  • Future Family Plans: Factor in the possibility of more children, as this could significantly impact your estate’s distribution.

Choosing a Reliable Executor

Selecting the right executor cannot be overstated. This individual will manage your estate, adhering to your will’s details after your passing. A trustworthy executor ensures your assets distribute according to your wishes without bias or conflict. It’s prudent to choose someone well-informed about your family dynamics and financial affairs, often favoring a local Texas resident for convenience and legal simplicity.

Selecting Beneficiaries – Beyond the Immediate Circle

Broaden Your Horizon When identifying beneficiaries, look beyond your immediate family. Many choose to leave assets to charities, friends, or even mentors who have made a significant impact on their lives. This decision reflects your values and legacy, offering support to those causes or individuals aligned with your life’s passions.

Understanding Trusts and Their Benefits A trust serves as a flexible tool in estate planning, particularly beneficial for:

  • Minor Children: It allows you to specify when and how your children will receive their inheritance, safeguarding their future until they reach maturity.
  • Significant Gifts: If you plan on bequeathing large assets, a trust can stagger these distributions to ensure they are managed wisely over time.

Setting up a trust requires you to appoint a trustee, much like an executor for your will. This person or entity will manage the trust’s assets according to your specified terms, offering a layer of protection and foresight to your estate planning.

The “Must-Dos” of Will Drafting

Do and don'ts of making a will?

Draft Your Will to Control Your Estate

Creating a will is non-negotiable if you want to control how your estate divides after your passing. Without a will, you leave the fate of your assets, from the smallest keepsake to the most significant investment, in the hands of state law, not your wishes. Take the reins by drafting a will that speaks clearly about who gets what, ensuring your legacy mirrors your life.

Understand Property Types: Separate vs. Community

In Texas, knowing whether your property is “separate” or “community” is crucial:

  • Separate Property: This includes assets you owned before marriage or received as a gift or inheritance during the marriage.
  • Community Property: Typically, this encompasses assets acquired during the marriage, with both spouses having equal ownership.

This distinction is vital as it directly influences how your assets will be divided in your absence, making it essential to align your estate planning with these legal definitions.

Dos and Don’ts of Making a Will: The Dire Consequences of Dying Without a Will

Probate Laws and Unintended Heirs

If you pass away without a will in Texas, probate laws take over, dividing your estate in ways you might not have intended. These laws don’t consider personal relationships or wishes, potentially allocating your assets to distant relatives or, in their absence, to the state. Such a scenario underscores the importance of a will in directing your estate to your chosen beneficiaries.

The Costs of Avoiding a Will

Dying intestate (without a will) not only disregards your distribution wishes but also subjects your estate to prolonged probate proceedings. This delay often results in significant financial costs, draining estate funds that could have benefited your heirs. Moreover, the emotional toll on your family, dealing with bureaucratic hurdles while mourning, can be overwhelming. Drafting a will spares your loved ones from this added stress, ensuring a smoother transition of your assets.

Protecting Your Legacy and Loved Ones

Do and don'ts of making a will?

Actionable Steps for a Comprehensive Will

  1. List Everything of Value: Ensure you overlook nothing by listing all valuable assets, including property, investments, and items of sentimental value.
  2. Decide on Beneficiaries: Clearly identify who will inherit your assets, including any charities or non-family members you wish to include.
  3. Choose an Executor and Trustee: Appoint trusted individuals or institutions to carry out your will and manage any trusts.
  4. Consider a Trust for Minor Children: If applicable, set up trusts to manage inheritance for minors until they are of age.
  5. Consult Legal Advice: Engage with a legal professional to ensure your will adheres to state laws and fully captures your wishes.

Drafting a will is a profound act of care for your loved ones, providing clarity and security during a difficult time. It safeguards your legacy and provides peace of mind by ensuring the honoring of your final wishes and the well-being of your loved ones as per your detailed instructions.


Confronting our mortality can indeed be challenging, but engaging in the process of drafting a will empowers us to face this reality with grace and preparation. The dos and don’ts of making a will guide you in ensuring that your wishes receive respect and your loved ones receive proper care according to your intentions. Beyond its legal significance, a thoughtfully crafted will serves as a profound testament to your life, values, and affection for those closest to you, encapsulating your aspirations and hopes for their future well-being.

Questions about the material contained in today’s blog post? Please do not hesitate to contact the Law Office of Bryan Fagan.

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law and estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how your family may be impacted by the filing of an estate planning, divorce, or child custody case.

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