Wills Attorney in Dallas, Texas

Knowing the basics about wills and estate planning can be beneficial if you want to begin thinking about how to provide for your family’s future, no matter your age. If you know that you need to begin drafting an estate plan, or if you just want to know whether an estate plan is something you’re likely to need, call me, Sharion L. Fisher, Attorney at Law, at the Law Office of Sharion L. Fisher in Dallas, Texas. In the meantime, I’ve answered some common questions about wills and trusts below. 

What Is a Will? 

A will is a legal document that outlines your wishes for the disposition of your property after your death. You can also use a will to appoint guardians for minor children upon your death. You will appoint a trusted person to act as the executor. That individual will distribute property and make sure that the instructions set out in the will are followed. Wills can be redrafted, or they can be updated using additions called codicils. 

For a will to be valid, you must sign the will in front of two witnesses. In Texas, you do not need to notarize your will. However, if you choose to sign a self-proving affidavit, you must notarize the affidavit. Making a will self-proving helps to speed the probate process along, as the witnesses do not have to be contacted in order for the court to accept the will. 

Commonly inherited assets include cash, jewelry, houses and other real estate, cars, furniture, stocks, bonds, art, and family heirlooms. You can also include a trust in a will.

What Is the Difference Between a Will and a Trust? 

Like a will, a trust is a legal document that gives instructions on the disposition of property. The grantor (the person creating the trust) appoints a trustee, who, in following the instructions laid out in the trust for disposing of property to a beneficiary, acts similarly to an executor of a will. However, you can create and dispense property from a trust while you are still alive. When you make a living trust, you are the trustee until your death, upon which the successor trustee manages the distribution of property to beneficiaries under the terms of the trust.   
Unlike assets named in wills, assets placed in a trust are not subject to probate after the grantor’s death. Many people place assets in a trust that they feel will be the subject of lengthy legal battles otherwise; a trust ensures that the beneficiary will receive their intended inheritance without having to go through probate court after the grantor’s death. Trusts are also private, while wills are of public record. 

Many people do not know that you can create a trust within your will. When this happens, the trust is called a testamentary trust. In this case, the trust goes into effect after your death. Unlike other trusts, a testamentary trust must go through probate.

Who Needs a Will? 

Those who live in states in which the laws provide generously for family members, or those who do not have many family members among whom to divide assets, might feel comfortable with the idea of not drafting a will. 

For example, Texas is a community property state, meaning that, if a spouse dies intestate (or without a will), they will automatically leave half the marital property (or property that accrued during the marriage) to a surviving spouse. Further, a spouse who dies intestate automatically leaves half of their separate property (or property acquired by one spouse outside of the marriage, plus certain inheritances and gifts given to one spouse during the marriage) to a surviving spouse if there are no children, with the siblings or parents of the decedent receiving the other half. In this case, if the decedent discussed this with their family before their death—and if their family was happy with this arrangement—no problems should arise when the property is divided. 

However, if you want to distribute your property in any other way than your state’s laws would distribute it, you’ll need to draft a will. 

Is There More Than One Type of Will? 

There are several types of wills, including:  

• Simple wills: These wills are basic. They appoint an executor, give instructions about the distribution of property, and appoint guardians for any minor children. 

• Joint wills: These wills are made jointly by a married couple.  

• Holographic wills: These wills are handwritten and not signed in front of witnesses, which can often lead to legal issues down the line. Holographic wills are not legal in all states, but are legal in Texas as long as you handwrite every part of the will and sign it. However, these wills are likely to be contested and should only be created when finding witnesses is impossible.  

• Pour-over wills: These wills are usually used to transfer property that was overlooked when the decedent made a living trust from a will into the trust; upon their death, this leftover property “pours over” into the trust. 

Why Is Having a Will Important?  

As outlined above, wills are important if you want to dispose of your property in any other way than the state would if you died intestate. You may, for example, want to provide more for those in your family who are less wealthy than other family members, or for those who have medical issues. You may have family (such as stepchildren) who would inherit nothing if you died intestate. You may want to leave some of your money to charities or set up a testamentary trust.

It is also extremely important to state your wishes regarding guardianship of any minor children in a will; otherwise, the court will make that decision for you. Having a will ensures that your family and any other beneficiaries you choose will receive their inheritance with minimal legal battles.