In order for your Texas will to be valid, it must have at least the following four elements:
1) The identity of the person making the will
2) The document offered as a will must have been made with "testamentary intent," meaning that the person wanted to make a revocable disposition of his or her property at death.
3) The person making the will must have had "testamentary capacity," meaning he/she was over 18 and of sound mind.
4) All statutory formalities must be observed. As of this time, these include three main requirements from Ch. 251 of the Estates Code:
a) Will must be signed by testator OR by another person at his/her direction and in his/her presence
b) Will must be attested by two or more credible witnesses 14 yrs of age or older, who subscribe their names to the will
c) These witnesses MUST sign in the presence of the testator
There are pages upon pages of case law further clarifying what all of these requirements mean, but in general a few interesting things to note are:
1) The identity requirement does not have to be satisfied by a notation at the beginning of the will such as "Last Will and Testament of Joe Schmo." The testator's signature is enough to meet this standard, though of course this is not best practice and is only typically seen in extreme cases. The signature/identity also need not be at the end of the document.
2) While the best practice and certainly most common scenario for showing testamentary intent is that the document being offered as a will is, in fact, labeled as a will and is in the generally recognized form of a will, it is possible to show testamentary intent even if the document doesn't call itself a will. Such as a note that says "I want my daughter to get my house when I die. Signed, Joe Schmo." HOWEVER, note that it is clear from case law that letters or notes directing (for example an attorney) to prepare a will or codicil, do NOT meet the testamentary intent standard and cannot be offered for probate in lieu of a will.
3) If you have concerns about testamentary capacity, you truly and sincerely need to obtain professional legal help to assure that there are not questions later about the execution of your documents. A separate post on this blog gives more detail on the basic contours of this standard, but if there are questions, professional help is needed. Also of interest, persons under 18 have testamentary capacity if they are 1) married or 2) in the armed services.
4) While the will does not technically have to be signed by the testator with the witnesses watching, the witnesses must be in the presence of the testator when they sign. In practice, the best course of action is always to have all witnesses and testator remain together in the room observing each other signing all of the documents.
The general differences between a will and an estate plan are:
A will can: 1) direct how some or all of your property is passed at your death (to a greater or lesser degree of complexity), direct what happens to you at your death (but may not be seen until too late), and 3) if you have dependents it can name their guardian(s), including a guardian of their property.
While a will is important, it is limited in the following ways: 1) it can only go into effect if you are deceased, if you are incapacitated your non-spouse family has no guidance and often no ability to manage your funds or make your medical decisions 2) while a will can state your wishes for your body, last services, etc..., it is not always followed because a will is not always found and read immediately after death when these decisions are being made. In addition, if family disagrees, there can be disputes as to who has the right to make such decisions, 3) it will typically only govern the disposition of SOME of your property and the types of property not controlled are often among the most valuable (retirement accounts, life insurance, property owned by joint tenancy, and other assets with beneficiary designations will pass according to those designations and NOT according to your will), 4) without adding a trust to the will, money left for children can only be handled in specific, usually statutorially controlled ways, typically involving court supervision, 5) if you are only incapacitated there is no guardian designated for the children, the will is not in effect, and 6) children or family members with special needs and/or on government assistance may loose their benefits if they receive an inheritance from you via the courts that was not structured to avoid disqualifying them.
An estate plan can: 1) direct how ALL of your property is passed at your death, 2) direct what happens to you at death without requirement that will be found and read first, 3) if you have children it can name their guardians and by including trusts can provide a great degree of control over how money left for them is managed and spent WITHOUT court supervision, and 4) by using additional documents it can control what happens if you are incapacitated as well as if you are deceased and can protect funds for your loved ones in either event.
As you can see, while a will is a very important PIECE of an estate plan, doing "just a basic will" as many people are wont to do, leaves a lot of large gaps in coverage!
The good news is, the additional documents that are needed to fill in these gaps don't have to be crushingly expensive or hard to obtain. The term "estate planning" can sound intense, but a competent attorney can lead you through all of these decisions and documents in a way that makes sense for the size of estate you have and the people you need to protect. Contrary to popular beliefe "estate planning" doesn't refer only to complicated and expensive actions taken by high-asset families to protect and pass on great wealth. It refers to a big-picture plan that is available to the average individual and family too!
Jessica A. Brown, attorney