Sam A. Moak outlines the purpose of a will and the requirements for making one under Texas law.
The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
While making a "house call" this week that involved a family's bitter fight over property, it occured to me how disrespectful folks have gotten. We all have elders, I was raised to respect my elders even if I did not agree. Therefore, this week I will attempt to explain the importance of a Will and what the requirements are for one to be valid.
A testator is a person who leaves a Will in force at his or her death. A Will is a legal instrument which states how the testator's property is to be distributed at death. 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 persons he or she desires. You do not have to leave property to your children or grandchildren, especially if they have been disrespectful. If your heirs have not treated you correctly or respectfully, then you can sell your property and spend your money on you. If there is anything left, then you can name a charity or someone who has been respectful and appreciative as the recipient of your estate. However, you MUST have a Will drafted to correctly state your intent and include provisions in the event the disrespectful folks are not successful in challenging your Will.
In addition to naming the recipients of the testator's property, the Will also designates the individual(s) who will manage the property, make distributions in accordance with your wishes and possibly care for minor children or grandchildren.
For a Will to accomplish any or all of these results, it must have been properly signed. Texas recognizes three kinds of Wills: oral, handwritten and typewritten.
To sign or execute any of these Wills, the testator must meet the following basic requirements:
1) Be at least 18 years of age, married, or serving in the armed forces;
2) Be of sound mind at the time of execution;
3) Not be unduly or fraudulently induced (forced or deceived) to make the Will; and
4) Have testamentary intent.
Additional requirements exist depending on whether the Will is oral, handwritten or typewritten. There are "cookie cutter" Will forms available, however, often they originated from another state, are outdated, or fail to meet additional requirements not listed here. For these reasons, the best approach is to have an attorney prepare a typewritten (or formal) Will and oversee the proper execution of the Will. The attorney can also assist in adding provisions to avoid potential conflicts or contests as well as language which makes it easier to understand the testator's intent.
To probate a Will, it must be established in court that the Will meets the requirements of execution and that the Will was not canceled or revoked. Additionally, unless the Will is "self-proved," proof of a handwritten Will requires testimony of two witnesses to the testator's handwriting and proof of a typewritten Will requires the testimony of one of the attesting witnesses.
A self-proved Will is one that has attached a specific form of affidavit containing certain required statements which is executed before a notary public at the same time the Will is signed or anytime thereafter but before the testator dies. A standard notary acknowledgment alone is insufficient to make the Will "self-proved." A self-proved Will is admitted to probate on the basis of the self-proving affidavit and there is no need to call witnesses.
A Will that is not proved in court is denied probate. In this event, the decedent's property passes to his or her heirs as if she died without a Will. Again, this further emphasizes how important it is to execute a Will which meets all legal requirements so that property will pass as the testator wishes. After proving the validity of a Will, the next step in the probate process is the administration of the estate.
Hiring an attorney to write your Will can help you ensure that the technical formalities of Texas law are followed and that your gifts are clear and easily understood. Spending a few dollars now will save your family and loved ones from spending more later. Not to mention the confusion and grief that will be avoided.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com (c)