Wills are a tool used to carry out the desires of a testator (person who makes the will) after he or she dies. A will can be a simple instrument that appoints an executor or guardian, directs how property may or may not be disposed of, or just revokes another will.

Most wills include these directives at a minimum but may be much more complex. There are formalities that must be satisfied for a will to be valid and capable of being admitted to probate. A will has no effect until it is admitted to probate, and a person named as executor in a will has no authority to administer the estate until they are appointed by a court with probate jurisdiction. Therefore, it is crucial that a will is properly prepared.

If a person dies without a valid will, Texas Intestacy Statutes govern the estate administration and heirship. These statutes do not account for the nature of the decedent’s relationships. Heirship is based on affinity and kinship. Under current rules, a loving girlfriend of 20 years who took care of decedent until his death will get nothing from the estate, while the decedent’s estranged child will inherit.

A testator may select his devisees in a will. Devisees are usually family, friends, a trust, a charity, a university and/or a church. The testator should also name alternates. For example, if my wife does not survive me, then I leave everything to my children in equal shares; and if a child of mine does not survive me, then I leave everything to their children in equal shares. Bequests may be general or specific. When making specific bequests, a testator should only bequeath assets he is likely to own at death. The family farm, a certain amount of money, heirlooms and mementos are common specific bequests.

A specific bequest fails if the asset is not part of the estate. So, a healthy 40-year-old should not bequeath his current car because, if all goes well, he will no longer own that vehicle when he dies decades later. Specific bequests will be honored first, then the remainder of the estate will be distributed as directed in the will.

Consideration should also be given to each devisee’s age, competency and level of responsibility. If distributions will be made to a minor, a person who is incapacitated, or a person who is wholly irresponsible with money, the testator may create a trust in his will or take other precautions to further control such distributions. If a testator makes unequal distributions or disinherits a child, it is a good idea to provide the testator’s reasons in the will.

Another benefit of a will is that the testator may select the executor(s) of his estate and may waive bond requirements and court oversight — keeping administration costs down, allowing for a more efficient administration. Under an intestate proceeding, this may not be the case. The executor will be responsible for managing the estate. The executor’s duties include paying claims, pursuing debts, gathering and maintaining estate assets, giving various notices, preparing an inventory of assets, filing tax returns, and ultimately distributing the estate’s assets. Even if a person (or corporation) is named as executor in a will, they must be appointed by the court in order to have authority to represent the estate.

To qualify for appointment, an individual must be a Texas resident or appoint a resident agent and must not be incapacitated, a convicted felon or a person the court finds unsuitable. Courts have broad discretion in deciding whether someone is unsuitable — a person is likely to be found unsuitable if they have claims against the estate, interests that conflict with the estate’s, a poor track record of managing assets, or lacks the knowledge and experience needed to do the job.

When naming executors in a will, it is important to select qualified and trustworthy people who are up to the task. If you don’t know anyone who fits this description or believe you may be setting someone up for failure, a corporate fiduciary may be a better option. Either way, it is important to appoint alternate executors in case your first choice cannot serve. It is also a good idea to ask prospective executors if they are willing to serve before making a will.

Review your will periodically and after certain major life events, such as death, divorce, marriage, birth of a child or grandchild, a falling-out with a devisee or a move out of state. If the will no longer reflects your wishes or if circumstances change, it may be time for a new will or for amendments to be made. Amendments are made through a codicil, which is a separate document showing the change to the original will or to a prior codicil. Do not pencil in amendments on your original will, remove pages or otherwise alter the original.

Under Texas law, wills from other states and certain countries will be admitted to probate if they comply with Texas law or the law of the place the will was prepared. However, the executor may not have the same rights and may be subject to additional court oversight if the will does not expressly state otherwise.

This article addresses only a few of the many considerations in making a will. This article is not comprehensive or intended as legal advice. It is based on Texas law. Keep in mind that each state has its own laws pertaining to wills and probate, and everyone’s circumstances are unique. Consult with a qualified attorney for estate planning advice.

RYAN T. WEBSTER is an associate at Alagood Cartwright Burke PC and can be reached at rwebster@dentonlaw.com and www.dentonlaw.com.

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