How Should I Sign My (Texas) Will?

You must sign and date your Will.  

The Will should also be signed by at least two disinterested witnesses who are at least 14 years old.  A disinterested witness is someone who is not named as an executor, trustee, or beneficiary in your Will.  You should also try to avoid using any family members who might inherit from you under the laws of intestacy as a witness to your Will. 

Under best practices, you should sign the Will in the witnesses’ presence, and tell each disinterested person that the document they are signing is your last Will and you want them to witness your Will.  

Each witness must sign the Will in your presence.  Although it is not necessary for the witnesses to sign the Will in each other’s presence, it is better to have both witnesses sign the Will at the same time and in each other’s presence, too.  

The witnesses should print their names underneath their signatures and provide an address at which they may be contacted in the event that their testimony is needed at a later date. 

In addition to simply signing your Will, you should consider adding a “self-proving affidavit” to your Will.  (See separate blog entry re: self-proving affidavits). 

It is strongly recommended that you consult with an attorney prior to signing any legal document, including your Last Will and Testament; this will help ensure that the document meets current statutory requirements and that you understand the significance and consequences of each provision and term contained in the document. 

By:      Cynthia W. Veidt 

Before You File an Application to Probate a Will in Texas

Carefully review the Will and any related documents before you attempt to file any type of application for probate of the Will. What you find can substantially impact the type of probate proceeding necessary in your specific circumstances, the type of notice you must give and to whom, as well as the type of evidence you will need to offer at any hearing on your application.

Some key things you should check:

• Was the Will properly executed by the deceased and at least two witnesses?
• Is there a self-proving affidavit attached to the Will, signed by the deceased and at least two witnesses in front of a notary? 
• Does the language of the self-proving affidavit substantially comply with the statutory form set out in Section 59 of the Texas Probate Code? 
• Have you located every Codicil that amended or altered the Will (in whole or in part)? 
• Was each Codicil properly executed by the deceased and at least two witnesses?  
• Is there a self-proving affidavit attached to each Codicil?  
• Is the Will (and each Codicil) an original document or a photocopy? 
• Are you the person named as the first executor in the Will? 
• Does the Will contain a provision stating that the executor may serve “independently” of the court? (see our previous blog post: http://texprobateblog.blogspot.com/2009/06/most-important-words-in-your-will.html) 
• Does the Will contain a provision stating that the executor may serve “without bond?” (see our previous blog post: http://texprobateblog.blogspot.com/2009/06/most-important-words-in-your-will.html) 
• Does the Will contain a “residuary clause” or other language that disposes of all of the decedent’s non-probate property?

If the answer to any of these questions is “No,” there will be a few extra steps to take as part of the probate process in your situation. You should seek advice from a probate lawyer to help you determine your next steps.

By: Cynthia W. Veidt

Texas Intestate Succession: Not Married (With and Without Children)

What happens to my property if I die without a will while unmarried?  

The answer depends on whether you have any surviving children or other living descendants.

In Texas, if you are not married when you die without a will, but you have living children (or their descendants), all of your property is divided equally among your living children (or their descendants).

However, if you are not married and had no surviving children or other descendants when you die, the Texas probate code will attempt to keep your property “in the family” by looking for your nearest blood relative(s).  In general,

• If you are survived by both of your parents (natural or adopted, but not step-parents), your mother will inherit one-half and your father will inherit the other one-half;

• If you are survived by only one of your parents, and there are no living siblings or descendants of siblings (nieces, nephews, etc.), your surviving parent will inherit everything;

•  If you are survived by only one of your parents, and there are living siblings or descendants of siblings (nieces, nephews, etc.), your surviving parent will inherit one-half, and any living siblings (or their descendants) will split the other one-half into equal shares;

•  If you are survived by neither of your parents, and there are living siblings or descendants of siblings (nieces, nephews, etc.), any living siblings (or their descendants) will split your property into equal shares; or

•  If you are survived by neither of your parents, and there are no living siblings or descendants of siblings (nieces, nephews, etc.), your property is dividing into two halves.  One half will go to any living paternal kin – in other words, any living relatives of your father, starting at your grandparent’s generation and looking for any of their descendants – and the other half would go to your maternal relatives, starting at your grandparent’s generation and looking for any of their descendants.  The Texas courts will look back as many generations as necessary until they find a living blood relative. 

So, that email about your great-uncle’s cousin in South Africa that you’ve never heard about before, the one who left you a multi-million dollar estate?  Yeah, still not likely to be true.  Always get some independent confirmation about these matters before you send money or give out personal identifying information. 

Since this situation only happens if you die without a valid will, you can avoid all of that convoluted analysis by simply making a will.  We highly recommend that everyone have a will for this reason.

There is a very good explanation with pie charts of the foregoing here: http://www.co.travis.tx.us/probate/pdfs/DnD_diagrams.pdf.

By: Cynthia W. Veidt

Texas Intestate Succession: Married Without Children

What happens to my property if I die without a will while married, and I have no children or other living descendants?

In Texas, the probate code assumes that you would want your surviving spouse to inherit all of your one-half interest in your community property, as well as all of your separate personal property.

If you owned any separate real property, though – in other words, you owned real estate that was not part of the community property estate with your surviving spouse – Texas law assumes that you would want to keep some of that real property “in the family.”   

WARNING: THIS GETS COMPLICATED.  

Here’s how the Texas probate court will divide your separate real property:

If you are survived by your spouse and both of your parents (natural or adopted, but not step-parents), your surviving spouse will inherit one-half and each of your parents would inherit one-fourth;

If you are survived by your spouse and only one of your parents, and there are no living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit one-half and your surviving parent will inherit one-half;

If you are survived by your spouse and only one of your parents, and there are living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit one-half, your surviving parent will inherit one-fourth, and any living siblings (or their descendants) will split the other one-fourth into equal shares;

If you are survived by your spouse, but neither of your parents, and there are living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit one-half, and any living siblings (or their descendants) will split the other one-half into equal shares; or

If you are survived by your spouse, but neither of your parents, and there are no living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit all of your separate real property.

Since this situation only happens if you die without a valid will, you can avoid all of that convoluted analysis by simply making a will, which we highly recommend to everyone.

There is a very good explanation with pie charts of the foregoing here: http://www.co.travis.tx.us/probate/pdfs/DnD_diagrams.pdf.

By: Cynthia W. Veidt