One of the least pleasant subjects in all the laws to discuss is that of creating a will. There is nothing fun, exciting, or feel-good about creating a will. The entire process is difficult from an emotional perspective as well as from a family-based perspective. You are having to answer difficult questions about your family life in terms of who you want to inherit property from you once you pass away. Additionally, you were also answering the difficult question of who you do not want to inherit property from you when you pass away. While all of us know that we are someday going to pass away that does not make this process any easier. It is completely understandable to want to bypass this entire discussion and instead focus on more immediate concerns or things that are getting our attention right now.
However, we must bear in mind that none of us know the exact time that we are going to pass. This is a rather gross subject to discuss but it is necessary given the importance of estate planning and end-of-life planning. There is so much that can be done to help you and your family prepare for an end-of-life situation for you. However, it is up to you all to be able to put these steps into motion and create a plan. Otherwise, your family may find itself in a tricky spot when you do pass away. Nobody wants their legacy to be that of a person who did not prepare their family well for this situation.
Better for you to decide than the government
I can't think of a single better reason for you to pay attention to how your will is going to be drafted than reminding you that someone will ultimately decide about how your assets are divided upon your death. There are only two choices here. The first is for you to decide on how your assets are divided up when you pass away. The most common way for this to be done is through a will or trust.
By drafting a will, you are appointing an executor. The executor’s job is to execute your wishes in terms of how to divide the property. The executor will become familiar with your estate plan and the terms of your will. He or she will likely need to submit your will for probate. The probate process allows a probate court judge to appoint him or her formally as executor and give them the authority to begin to divide property in a manner according to the terms of your will. This will be done after any challenges to the validity or terms of your will are dealt with.
Additionally, the probate court would allow any creditors of yours to come forward and make a claim upon your assets before they are divided and distributed by the executor. What some people forget is that and end of life situation does not only mean that property is going to be distributed. Rather, the property will be distributed only after any creditors that you might have been paid. In some cases, your estate will not have sufficient property to satisfy all the claims of creditors. In that case, the probate court judge would work with your executor to ensure creditors are properly paid and their claims are satisfied as much as possible.
Overall, this is a steady and straightforward method of handling your estate after you pass away. Well, many people are worried that the probate process is timely or expensive rest assured that you are executor it does not have to pay the costs of probating your will. That will all come out of a state. Your relatives can be satisfied that your debt had been handled correctly and that you're a state went through the proper recourses to make sure that the law in Texas was followed and your best wishes were followed through the will.
This discussion begins with a determination that you must make that a will is in your best interest. Without knowing you personally I can confidently tell you that you should at least consider having a wheel drafted. To begin that topic of conversation you should reach out to experienced probate in a state planning attorney with the Law Office of Bryan Fagan. Our attorneys can work with you on figuring out how to best allocate resources in drafting the language of your will. Again, no one wants their legacy to be that of a person who did not properly plan for an end-of-life situation. By reaching out to an experienced attorney you can ensure that this person is not what your legacy will be.
On the other hand, if you do not have a will then you are putting your family in a position where the government will have the final say-so on how your property is divided. By this, I mean that the Texas probate code will in large part determine how your property is divided. Through the laws of intestate distribution, the judge will follow the law and divide the property up largely between your spouse and your children. Any extended relatives may be able to inherit property, but it is your children and your spouse who have first dibs.
Some of you out there may be reading this while having the opinion that there is nothing wrong with letting the judge fall low the law and distribute property to your family members. This is how you would have done it had you had a will. However, while this scenario may work for some of you it may not work well for others. Imagine a situation where you have children that you do not want to inherit property from you for various reasons. If you do not have a will then the judge will still, follow the law and your children will end up inheriting property from you. Because you did not write down your thoughts and have a valid will execute your wishes cannot be followed in that case.
You may have a list of worthy beneficiaries that you would prefer to name as persons or entities that could inherit property from you. For instance, what if you had friends, a church, or another worthy recipient of your money and assets that you would like to be able to inherit property from you? Without getting a will in place you would not be able to ensure that these people or charities would be able to inherit from you. Instead, the probate court judge would simply follow the law and distribute property. Most likely it would be a close family who would receive the lion's share of your property.
What it takes to create a valid will
So, we have discussed why you may be interested in creating a will. I think we have effectively laid out the case for why having a will is certainly in your estate's best interest as well as your family's. Certainly, if you have someone other than your spouse or children that you want to inherit property from you then you should have a will. The next step in our discussion should be how to create a will and how to do so as efficiently as possible. This means spending the least amount of money for the maximum number of results that you could garner from the creation of the will. After all: you want to ensure that you do the process correctly but there is no need to overspend in any facet of the will creation process.
This first step in the process probably begins with you long and hard about how you want your assets to be treated upon your death. It could be that your opinions change between now and some point in the future. That's OK. Keep in mind that you could update and revise your will as many times as you would like. Most of the time this just involves throwing out the old wheel and creating a brand new one. However, we do not know the moment in time that we will pass it is necessary to have a will for right now.
The first thing that we need to talk about when it comes to creating a valid will is your age. I like to tell every person over the age of 18 that they need a will. Being over the age of 18 most likely means that you are an adult and that you are responsible for yourself after that point. Children do not have estates That they can independently control. This is because a child is a minor and minors cannot own property or assets. Technically anything a child owns or purchases before the age of 18 is their parent’s property. To create a valid will, you must be over the age of 18, emancipated from your parents, or married to a member of the United States armed forces. Otherwise, any will that you create will be void due to your not being able to create a will.
Next, you must be in the mental state required to create a will. This means you must understand the will creation process and be actively involved in the creation of the document. For most of you reading this blog post that should not be an issue. This becomes an issue for a person who is in a true end-of-life situation. This could be that the person is elderly it is close to passing due to natural causes because of old age. Other times, a younger person could be close to passing alright let's see in much the same way. Or you may simply be under such a medication regimen that you are not of sound mind.
You need to realize what you are doing when you are creating the will. In legal terms, this is known as having testamentary capacity. If someone attempts to challenge the creation of your will on grounds that you were not of sound mind, then he or she would likely need to present evidence showing your mental state as not being sound. For instance, statements from doctors, therapists, or other persons that are contemporaneous with your real creation showing that you were not able to take care of yourself may be introduced to show that you were not of sound mind.
Finally, the third element that must be in place for you to have a valid will is to have testamentary intent. All this means is that when you create your will you must have had the intent to create a document that would distribute the assets of your estate at your passing. Next, you must sign the document of your own free will. If a relative or other person is forced, you to create the document or to otherwise sign the document then the will not be valid.
What format must your will be in? One of the many advantages of living in Texas is that our state honors two different sorts of wills. However, you must understand that there are specific requirements that must be in place for each type of will. If you draft that kind of will and do not have those requirements in place, then the document will be declared void and it would be as if you did not have a will in the first place. Since you do not want to go through all the trouble of creating a will only to have it declared void then you should pay close attention to the remainder of today's blog post, so you do not make any mistakes inadvertently.
A holographic will is a sort of we will think about as being old school or as seen in the movies. A holographic will is handwritten by you and signed off in your handwriting. You be back basically; you can create a holographic wheel for yourself with pen and paper at your home without witnesses or a notary. This would be the method that you may choose to do if you understand that you are taking your last breaths and know that you will not have an opportunity to go through the formal process of adopting a will. OK bear in mind that the holographic world must be completely written by you and cannot contain language from another person or the handwriting of another person.
The other type of will that is frequently created is one where you speak with an attorney and that attorney drafts the will for you. the requirements for validity of this type of will are very similar to the holographic will in terms of its contents. However, they will be created by another person on your behalf must be witnessed by two persons over the age of 14, and must be notarized by a notary public. This is the type of will that you may need to have created if you have a complicated or largest state. Or, if you are in a situation where you are running out no that you cannot devote the time and energy necessary to create the document on your own. In that case, it may be better for you to have some meetings with an attorney for that attorney to draft the document on your behalf.
Closing thoughts on drafting a will
When it comes to creating a will there is no substitute for experience. You can review all the blog posts you would like and read any number of legal articles on the subject. However, all this information and education you are giving yourself is not a substitute for having someone by your side who can help you that way if you wanted to create the specific language you need to ensure that your wishes are followed upon your passing. This is where an experienced estate planning attorney comes in to play for you and your family. Perfect
Contrary to what you may be thinking hiring an attorney to help you with the will creation process does not have to be expensive. Box, On the contrary, you can work with an attorney had a limited basis to ensure that the lawyer understands what your wishes are and to review drafts of the will once complete. This entire process is with you thinking about the future, determining your assets, coming to terms with who or what you want to distribute your property to, and then taking the step to speak with an experienced attorney. You can do these things. Our office is here to help you work out the details and finish the job.
Questions about the materials contained in today’s blog post? 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 probate 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 probate and estate planning law as well as about how your family's circumstances may be impacted by an end-of-life situation.