A will can also set up a trust, a method by which property is held by one party (the trustee) for the benefit of another (the beneficiary). To establish a trust, the testator transfers property, with the specific intent to create a trust, to the trustee who manages and administers the property for the benefit of named beneficiaries. A testamentary trust arises under a will and becomes effective when the testator dies. A trust is an effective way of managing property for the benefit of minor or incapacitated persons or persons who are incapable of managing their own financial affairs. A trust also is useful to prevent a spendthrift child from immediately spending his or her inheritance by preserving the funds for the child's education or other important needs. Further, a trust may be used to protect the child's inheritance from the claims of his or her creditors because property placed in a trust generally may not be reached by a beneficiary's creditors until it is distributed to the beneficiary. There also are many other legitimate reasons to create a trust in a will.
A valid will avoids many of the problems that may arise from dying without a will and allows a person to leave property to the person(s) he or she desires. In addition to naming the recipients of the testator's property, the will also designates the individual(s) who will manage the property and care for minor children. In larger estates, the will often contains provisions that minimize estate taxes.
Requirements for ExecutionFor a will to accomplish any or all of these results, it must have been properly signed. Texas recognizes three kinds of wills: oral; handwritten (holographic); and typewritten (formal).To execute any of these wills, the testator, must meet the following requirements:1. is at least 18 years of age, married, or serving in the armed forces;2. is of sound mind at the time of execution;3. not unduly or fraudulently induced (forced or deceived) to make the will; and4. has testamentary intent (present intent to bequeath property at death).Additional requirements must be met for each type of will.
In more than half of the states, the holographic will is not recognized as a special type of will and is invalid unless duly attested by the required number of witnesses.
In Texas, property is characterized as separate or community. Separate property is that owned before marriage or acquired during marriage by gift or inheritance. Damages awarded during marriage from a personal injury lawsuit, except damages representing the loss of earning capacity, also are separate property. Community property is all property, other than separate property, that is acquired by either spouse during marriage.
. The advantage lies in dying with a will. With a well-drafted will you can avoid legal pitfalls, name an executor of your estate, name a guardian for your minor children, establish trusts, minimize estate tax liability, and minimize probate-related costs by providing for independent administration.Although a will can be challenged in court, the grounds for contest in Texas are few, and the law favors carrying out the decedent's intent. Executing a will is not as complicated or as expensive as you might think. You are encouraged to talk with an attorney about wills, trusts, and estate administration and to have a will prepared by the attorney.After a will is prepared for and executed by a client, it is important that the will be kept safe until the death of the testator. A will may be deposited with the county clerk in the County of the testator's residence.[FN1] The provisions for the depositing of a will during the lifetime of a testator are solely for the purpose of providing a safe and convenient repository for such a will. No will that has been so deposited will be treated for purposes of probate any differently than any will that has not been so deposited. [FN2] A subsequent will that is not deposited will be admitted to probate upon proof that it is the last will and testament of the testator, notwithstanding the fact that the same testator has on deposit with the court a prior will that was deposited in accordance with the provisions of the Texas Probate Code. [FN3] Similarly, the fact that a will has been deposited with the county clerk does not constitute notice of any character, constructive or otherwise, to any person as to the existence of such will or as to the contents thereof. [FN4]Any person who has an interest in a deceased's estate may contest the testator's will. A will may be contested on a variety of grounds. The contestant might claim that the testator lacked legal or testamentary capacity to execute a valid will.[FN1] The contestant might claim that the will was executed under undue influence, duress or by fraud or some mistake that should invalidate the instrument.[FN2] Further, a will may be contested on the ground that is is not the last will of the testator, that the contested will had been revoked or that it was never intended by the testator to be a will.[FN3]
Wills in Texas
WILLSAshima Arora Chock Law Firmwww.ashimachocklaw.comPh. 832.275.03331The information here is not intended as legal advice but to provide a general understanding of the law in Texas.
Do we need a Will?• If you want to ensure that your assets arepassed to those who took care of you or to acharity or to those who you think deservewithout unnecessarily draining your wealth incourt entanglement in trying to find yourrelatives than you must have a valid Will.2
What happens when we do not have aWill-dying intestate(without a will)?• Heirs-at-law inherit i.e. relatives asdetermined by Texas Law will inherit;• no independent administration;• Personal representatives may need a bond.3
What does not pass through a Will?• property passing through contract like:insurance policies, ira’s, employee benefitsunless funded by community incase ½ isowned by other spouse;• property passing by survivorship, like jointbank accounts;• property held in trust.4
How and who can execute a Will?• Executed by person over 18, or legally marriedor member of armed forces;• Sound mind, Legal Capacity;• Testamentary Intent;• Different rules of validity for Oral Wills,Holographic Wills and attested Wills.5
Types of Wills• Oral (nuncupative): usually dictated on the deathbed. Limited to personal property;• Handwritten (holographic): fully handwritten,must detail a testamentary intent-Two witnessesto the handwriting of the testator are necessaryto prove the execution of the will. ;• Typed/Written: witness by two witnesses over 14years of age. Good to have it self-proved-i.e.selfaffirming affidavit -2 witnesses & a notary. AlsoWitnesses must subscribe their names thereto intheir own handwriting in presence of testator6
What Can be passed through a Will?• You can only pass what you own at the time ofdeath;• Texas is a community property State.7
Foreign Wills• the law of the actual domicile of a testator is to govern in relation to his testament of personalproperty, whether the property is situated in the domicile of the testator or in a foreign country ….But in respect to real property of the testator, the place where the property is situated is to governnot only as to the capacity of the testator, and the extent of his power to dispose of property, but asto the forms and solemnities necessary to give the will its due attestation and effect• A party who wishes a Texas court to apply foreign law must first comply with the applicable rules ofevidence and procedure. In the case of In re Estates of Garcia-Chapa, Intestates died domiciled inMexico with bank accounts located in Texas. The court recognized the basic choice of law rule thatthe laws of an intestates domiciliary jurisdiction determine the succession to personal propertysuch as the bank accounts at issue. Accordingly, Mexican intestacy law should determine thesuccession to the accounts. However, the court refused to apply Mexican law because the partiesfailed to comply with the procedures mandated by the Texas Rules of Evidence and Rules of CivilProcedure which must be followed before a court will apply foreign law.• Any will that has been admitted to probate in any other jurisdiction, whether within or without thelimits of the United States, may be admitted to probate in Texas by presented a copy of Will to theclerk of the probate court of this state having venue, together with proof of its probate in the otherjurisdiction, for recording in the judges probate docket. When recorded, it has the same force andeffect as if the original will had been admitted to probate in this state.8
Other things to consider• Independent executor clause, executor to act without a bond;• Revocation clause-that the will revokes all previous wills;• Named executor must not ne incapacitated, convicted felon, if non-resident, theywill have to appoint a resident agent, a corporation cannot act as a fiduciary inTexas;• no-contest clause;• choice of law clauses;• photocopy can be executed as an original;• Surviving spouse and minor children are entitled to occupy homestead no matterwhether its separate or community.• Beneficiary can also be executor persons whose interest are adverse to the estatemay be disqualified.• With few exceptions like admitting as muniment of title, Will must be probatedwithin 4 years of death• Safekeeping of Will• Also consider having Living Will (Directive to Physicians of desire not to besustained on artificial means), Medical Power of Attorney (Health decisions in caseof metal incapacity), Durable power of attorney(management of property incase ofincapacity)9