Texas Wills And Living Wills

Texas Wills and Living Wills

Legal Wills in Texas


Question: What are the requirements of a will?

Answer: In order for a document to be a will, it must comply with the requirements of Texas Estates Code section 251.051.  If typewritten, a will must be signed by the testator and attested by two or more credible witnesses above the age of fourteen, who also sign the will in the presence of the testator. We should review your document to determine if it complies with the statute.

Question: Does a murderer still inherit from the person he killed?

Answer: The short answer is no. This is not precisely a will contest, but contesting the distribution terms of the will. Texas Estates Code section 201.058(d) prevents a “beneficiary of a life insurance policy or contract who is convicted and sentenced as a principal or accomplice in willfully bringing about the death of the insured”…from inheriting due to wrongful conduct. Courts would impose a constructive trust on the wrongdoer in favor of different beneficiaries. See Bounds v. Caudle, 560 S.W.2d (Tex. 1977), appeal after remand, 611 S.W.2d 685 (Tex. Civ. App.–Corpus Christi, writ ref’d n.r.e.). In other words, the murderer inherits nothing.

Question: Why would I want a trust for a minor child in my will?

Answer: As far as the will is concerned, of course you should write one immediately. You should also make plans for the minor child because naming him as a beneficiary can be problematic. In other words, you should name a trustee to manage the inheritance money for the child. If not, then a guardianship may be necessary, or maybe worse, the other parent would have the presumed right to manage the money. In addition, in the absence of trust language, the child would have full right of access to any money on his eighteenth birthday. Most teenagers gaining access to money spend it badly. You can make plans for that with a will including a simple trust.

Question: When can the will be filed as a Muniment of Title?

Answer: Filing a will as a muniment of title only is appropriate if the only asset to transfer is real estate, and there are no unpaid debts owed by the estate, except for liens on real estate. Texas Estates Code section 257.001. Essentially, this publishes the will for purposes of transferring the real estate to the named beneficiaries in the will. A court hearing is necessary to present the will for probate as a Muniment of Title.

Question: Is there a time limit to probate a will?

Answer: Any will must be offered for probate within four years of the date of death, with very strict exceptions. However, it is almost always a good idea to probate the will earlier rather than later.

Question: Does a will have to be probated?

Answer: The Texas Estates Code no longer requires that a will be probated. However, as a practical matter you should review the circumstances to determine if probating the will is an appropriate approach or if another approach is desirable.

Question: Is there a time limit to contest a will?

Answer: The will must be contested within two years of the date it was admitted to probate, with some exceptions. Texas Estates Code section 256.204.

Question: How much does a will with trust language cost?

Answer: A will with simple trust language to protect children is $700.00, and other papers (powers of attorney, etc.) are $75.00 each. Please see the Will Information sheet on the “forms” page of my website at www.edallasattorney.com, which requests vital information in order to draft your documents.

Question: What is the definition of a Living Will?

Answer: A “living will” is a document known in Texas as a Directive to Physicians in a form as contemplated by Texas Health & Safety Code section 166.033. Its purpose is to state your intention with regard to artificially prolonging your life. In other words, with this instruction, you may direct that life-sustaining treatment be administered, withheld, or withdrawn. Texas Health & Safety Code section 166.031(1). Very bluntly, this document reflects your request to be “unplugged” in the event of a terminal or irreversible condition.

Specific concerns may also be itemized in your living will. For example, if you do not wish to be dependent on a respirator if you are determined to have no brain activity, you may say so. Likewise, if you wish to always be provided intravenous fluids, but do not want to be reliant on a feeding tube and have an imminently terminal condition, this may be stated as well. This document is revocable at any time. Texas Health & Safety Code section 166.042.

This document is one part of a set of documents to specify your wishes with regard to your medical care.

Question: Where publicly would I look to find a person’s will?

Answer: Infrequently, a will is recorded in the county records of the county where the testator, the person writing the will, lives and owns property. You may also contact the attorney who represented the person. Another place to look would be the probate clerk for the county where the person has lived and died-if the will has been filed for probate, it will be there.

Question: What makes a will valid and legal in Texas?

Answer: For a document to be regarded a will in Texas, under most circumstances, it must either be entirely in the handwriting of the person making the will (the testator) or, be a ceremonial will. A ceremonial will must be in writing, and signed by the testator in person in the presence of and attested by two or more credible witnesses over the age of fourteen, who in turn subscribe to the will in their own handwriting in the presence of the testator. Texas Estates Code section 251.051.
The ceremonial will, which is the preferred choice, may be made “self-proved” by having it notarized with the appropriate language included at the end of a will. Texas Estates Code section 251.104.  This is preferred because such a will is easier and less expensive to probate. This is true since the witnesses to the will would not be required to come testify in court to probate the will.

Question: What are the reasons to have a will?

Answer: A will is your final personal statement that includes instructions about the custody of your children, who will own your property, and who will inherit your money. Without a will, the State of Texas determines who raises your children and who inherits your property and money.

For this reason, it is important that everyone write a legal will. Most people avoid writing wills because they don’t like to think about their death and the details that follow. Once you decide that you prefer to determine your children’s guardian and who inherits your property and money, the process of writing a will doesn’t take much of your time. The whole process usually takes a couple of meetings and less than a couple of weeks.

It is also important to update your documents periodically. A simple will is $600.00, a will with simple trust language is $700.00 and other papers (powers of attorney, etc.) are $75.00 each.

Question: How much is a simple will?

Answer: A simple will is $750.00, and other papers, advance directives (powers of attorney, etc.) are $100.00 each. Please see the Will Information sheet on the Legal Forms page, which requests vital information in order to draft your documents.

– See more at: Texas Wills and Living Wills

Question: What is an heirship determination, and when do you need one?

Answer: If a person dies without a will, then the court determines the identity of the heirs of that deceased person.  This is known as an heirship determination in Texas.  When you write a will, you name your heirs to be whomever you choose, regardless of the members of your family.  Without a will, no heirs are named, and so the court must decide who the heirs of an estate will be.  The Texas Estates Code sections 201.002 and 201.003 dictate the shares of property that particular heirs, always family members, would be awarded in the absence of a will.

Question: What is a Medical Power of Attorney?

Answer: A Medical Power of Attorney is authorized by Texas Health and Safety Code sections 166.163 and 166.164. Every adult has the right to make their own medical decisions, or to refuse medical care. A medical power of attorney is an important document that appoints someone you trust to help you obtain medical care and with medical decisions, taking your concerns and preferences into account. The person you appoint can then help you make medical decisions in the event you are not able to communicate. The person you appoint cannot have you committed to a mental institution or consent to an abortion. Additionally, your appointed person would then have access to your other medical records in order to obtain medical care for you. Every person should have these documents.