Last Will and Testament

A last will and testament is a document used to indicate the wishes of the deceased in three important areas:

1. Nominating guardians of any dependent children
2. Appointing executors (personal representatives) to handle the transition of the estate
3. Listing beneficiaries of the estate

Without a will in place, the deceased passes "intestate". The state of Texas has rules in place when people pass intestate.

First, a court will determine who shall be guardians of any minor children. The court may not know the deceased's values, personal beliefs and history with potential guardians which increases the chances of a guardian being named who wouldn't normally be considered by the deceased.

Second, a court will appoint an executor for your estate who, again, may not be your first choice.

Third, the state has instructions for distribution of an estate when there is no will.

1. If not married and there are children of the deceased, the children will split the estate.
2. If not married, no children and two parents are alive, the parents each receive one-half the estate
3. If not married, no children, only one parent is living and siblings are living, the parent receives one-half the estate and the siblings split the remainder
4. If not married, no children, only one parent is living and no siblings are living, the parent receives the entire estate
5. If not married, no children, no parents livings and siblings are living, the siblings split the entire estate.
6. If not married, no children, no parents and no siblings, one-half the estate will be split among the paternal grandparents, aunts, uncles and cousins and one-half will be split among the maternal side.
7. If not married and there is no family living, the estate will escheat to the state of Texas under Property Code § 71.001.

If the deceased is married and an asset is held in community property with the spouse:

1. If married and no children, the spouse receives the entire estate
2. If married and the spouse is the parent of the deceased's children, the spouse receives the entire estate
3. If married and children are not a descendent of the spouse, the spouse receives one-half of the community property and the descendents of the deceased spouse split the remaining one-half
   *** Separate property is property owned before a marriage or received during the marriage as a gift, an inheritance and money from settlements of a personal injury (except loss of earning capacity). Community property is property that is acquired during the marriage.

If the deceased is married and holds separate property, the surviving spouse receives one-third of the descendents personal property and the descendents receive two-thirds outright. For real property, the surviving spouse receives a life estate in one-third of the property and the descendents receive split their two-thirds when the surviving spouse passes.

For separate personal property when there no descendents, the spouse receives all separate personal property. For real property, the surviving spouse receives a life estate in one-half of the property and when the surviving spouse passes, any surviving parents, siblings and descendents of siblings of the decedent split one-half of the estate.

Passing without a will (intestate) can slow the distribution process as the court determines who are the rightful heirs to an estate.

Last Will and Testament

To create a valid will in Texas one must be 18 years of age, married or serving in the armed forces; be of sound mind, not be unduly or fraudently induced to make the will and have testamentary intent.

There are three kinds of wills recognized in Texas:

1. Oral - only applying to personal property worth less than $30 unless three or more credible witnesses are available
2. Handwritten (holographic) will - must be entirely in the deceased's handwriting and have certain language included.
3. Formal, typewritten will - must be signed by the testator or another person at the direction of the testator and signed by two witnesses who are not named beneficiaries of the estate.

All wills must be validated in court. This process is called probate and can vary in time and length depending on numerous factors, including size of the estate and the type of assets.

Some assets are not subject to probate. These assets include:

• Assets with beneficiaries already listed (IRAs, 401k's and life insurance) or "payable upon death" designations on bank accounts
• Assets owned in joint tenancy
• Assets in a living trust

Probate in Texas is simpler than in most states. Learn more about probate in Texas.

Contact an attorney to determine if a last will and testament is sufficient alone to handle the transition of your estate after you pass or to name guardians for minor children.