Below is a checklist of those provisions, which I feel should be included in every Texas Will. The list is not intended to be exhaustive, but rather should be viewed as a minimum standard for a well drafted simple will. For those of you who already have a will I would suggest you compare your will to this checklist to see how it matches up. For those of you who do not have a will this checklist will assist you in gathering the information necessary for preparation of your will.
Name and Domicile
A declaration of your name and current domicile should appear in the Will.
Revocation of Prior Wills
The will should specifically revoke all prior wills and codicils you may have executed.
Identification of Family
Designate your current marital status and identify by name your spouse and children. Identify any stepchildren you may have and clearly state whether or not you intend to include them as beneficiaries. If you have no spouse or children, then identify your closest living family members.
Appointment of Independent Executor
Its not enough to simply name an executor. In Texas it is extremely important to designate your executor serve independent of court supervision. This language informs the court you want the least amount of court involvement in the administration of your estate that is possible under Texas Law.
Appointment of Successor Independent Executor
Always name a backup to function as independent executor in case your first choice dies, becomes incapacitated, refuses to serve, is unable to serve, or resigns.
Waive Requirement of Bond
Just because you designate your executor to serve independent of court supervision does not eliminate the requirement of a bond. Specifically waive the independent executors bond.
Designate Powers of Independent Executor
Just because your executor is independent does not mean your executor can exercise all of the same powers over your estate that you could while living. In order to further reduce court involvement in the administration of your estate you should consider granting additional powers to your independent executor. At a minimum I would suggest you grant the authority to sell assets and partition property.
Payment of Debts, Expenses and Taxes
Designate the manner and if desired the source for payment of debts, expenses and taxes. Do not require payment of all debts by your independent executor.
Disposition of Property
Clearly identify all property being disposed of and who is to receive such property. Designate contingent beneficiaries for property in the event your primary beneficiaries should die before you. Dispose of all of property and include a residuary clause to insure this is accomplished.
Appointment of Guardian
If you have a minor child, designate your preference as to who should be appointed guardian of the person and estate of such child. Always name a backup in case your first choice dies, becomes incapacitated, is unable to serve, or resigns.
This is a standard clause restating the basic requirements for execution of a will and specifically stating that the witnesses are attesting the will.
This affidavit recites the statutory procedure for execution of a will and is signed by the testator and witnesses in the presence of a notary public. It eliminates the need to have subscribing witnesses appear in court and give testimony when the will is presented for probate. The affidavit is extremely helpful if the witnesses have died, moved or cannot be located when it comes time to probate the will.
|Probate Attorney, Gregory G. Heffelfinger
The loss of a family member is a difficult enough situation. Compound that loss with the stress of having to deal with courts, banks, insurance companies, retirement plan administrators, and creditors and the situation may seem overwhelming. Some simple planning can greatly reduce the stress and make an overwhelming situation at least manageable during this difficult time. I often tell my clients that if they never have to see an attorney for any other reason, they should at least see an attorney to have a will prepared. In my opinion, with very few exceptions everyone needs a will.
While planning for death is something none of us like to think about, the consequences of procrastinating and having no will or estate plan may place an even greater emotional and financial burden on your family. Below, you will find some helpful information. The information presented is not intended to take the place of your attorneys counseling and recommendations, but rather is intended to provide you with some nuts and bolts information in a very readable format.
|About Gregory G. Heffelfinger
Gregory G. Heffelfinger is an attorney who has practiced law in Houston, Texas since 1983. He is a member of the of the State Bar of Texas, State Bar of Michigan, and licensed to practice before the United States District Court for the Southern District of Texas. Since 1983 Mr. Heffelfinger has provided legal counseling in wills, probate and estate planning to families utilizing the services of Earthman Funeral Directors.
Mr. Heffelfinger can be reached via email or call him at (713) 722-7163.