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Things You Will Need to Consider Concerning Your Will
You should think about the following before your will can be drafted:
- Do you want to purposely exclude one of your adult children from any inheritance?
- Who do you wish to serve as the executor or executrix of your will?
- Who should serve as an alternate if your first choice as executor or executrix cannot serve?
- Who should be in charge of the disposition of your remains?
- Do you want to make any special bequests?
- Do you have minor children?
- In the event of the demise of both you and your minor children's other parent, who would you want to serve as the children's legal guardian?
- Would you want a trust set up for your minor children?
- Who would you want to serve as the trustee of your minor children's trust?
- At what age would you want your children to have access to the funds in the trust, and under what circumstances?
These are issues to consider, and the attorney that will draft the will should be an excellent source of ideas based on his/her experience with past clients. Your lawyer can advise you on what is legal and what is advisable given your situation.
Types of Wills
Attested Written Will
The most common type of will is the one normally associated with being prepared by an attorney, who is knowledgeable and experienced in the drafting and preparation of wills. Probably 99% of the wills I probate in my practice are this type. An attested Texas will must be in writing, and it must be attested (witnessed) by two or more competent witnesses. It may be made self-proving, which will allow probate of the will without testimony of attesting witnesses. This means that you will not need to get the witnesses to appear in court with you to testify that they did, in fact, see the decedent sign the will and that they believed the will correctly reflects the wishes of the decedent. Obviously, the easiest and most reliable method of writing a will that the court will uphold is to employ the services of an attorney. Choose a probate lawyer who is experienced in the drafting of wills and have him/her record your wishes.
Holographic Will
A holographic will is one that is handwritten. For it to be considered valid in the State of Texas, a handwritten will must be written completely in the handwriting of the testator, and it must be signed. A holographic will, can be written out on anything, and it doesn't have to be signed by witnesses. As is the case with all kinds of wills, the person making out the will must have testamentary capacity and intent, meaning they are mentally competent and have the intent to do what they are doing at the time they write out and sign their will. They should not be under duress.
Pour Over Will
A "Pour Over Will" is often drafted for people with trusts. A pour-over will simply state that following the issuance of letters testamentary, any assets not in the trust be put into the trust, and then the trust dictates how the assets are to be treated. This type of will has very little court supervision and has minimal requirements. The only time you would ever have a pour-over will is in conjunction with a trust.
This article is for informational purposes only and is not to be considered legal advice. For more information, please contact our office and ask to speak with the attorney.
Please contact the law office of Michael L. Holland for initial consultation. Experienced Representation is just a phone call away.