Texas requires a will in order for a decedent <define> to dictate the distribution of his or her estate. If a decedent doesn't have a will, his or her property will be distributed to his or her heirs. This is called intestacy.
What is a Will?
A Will is a document that, at its core, simply states how a person's property will be distributed when he or she dies and who is responsible for paying the debts and distributing the property. There are several items that should be included in a person's Will to make it easier for the Executor <define> (the person tasked with administering the decedent's estate) to do his or her job.
Elements of a Valid Will –
Do I need a Will?
Not necessarily. Sometimes a person can dictate how to distribute his or her property when they pass without having a Will. Sometimes it's a better course of action to avoid probate at all. It is imperative that speak with an attorney to determine the best way to accomplish what you want. An incorrect decision now can potentially be very costly for your loved ones.
What if I die without a Will?
Dying without a Will is called Intestacy <define>. If a decedent is intestate, the Court must determine who his or her heirs are and then the property is distributed to those heirs. Some assets can pass to the next without a Will. Life Insurance proceeds, bank accounts with designated paid-on-death beneficiaries, real property with a Transfer-on-Death or a “Ladybird Deed”, and a variety of other assets. These are not automatic. Again, it is imperative that you speak to an attorney if you intend on trying to avoid probate. Too often people who own real estate or have some money in a bank account die without a will and it costs more to determine who the heirs are than the property is worth. With a little planning you could save your loved ones a lot of money and heartache.
Important Considerations in a Will –
Independent or Dependent Administration - If a decedent does not specify in his or her will that the executor administrator may act without the authority of the Court, the default in Texas is a dependent administration.
Executor - The person appointed by the decedent to manage the decedent's estate. If the person cannot, or chooses not to, serve as executor, then the person who seeks appointment to manage the decedent's estate would be considered an administrator.
Bond - In some cases, the Court may require a bond to be posted to serve as executor or administrator. A bond is similar to an insurance policy that protects the estate from malfeasance on the part of the the executor or administrator.
Power to Sell - Probably the most important power of an executor or administrator is the ability to sell and distribute assets of the estate.
Trust - An instrument that confers legal authority upon a third party to hold or manage property for the benefit of another. A trust that is created by a will is called a testamentary trust.
Appointing Guardian of Minor Children - A will can also include a list of persons that you may want to be guardian of any minor children once you die, as well as indicate to the Court any person you do not want to be appointed as guardian of any minor children you have when you die.