Wills are legal documents that specify who will inherit people’s property when they die. A beneficiary of a will is a person who will inherit your property upon death. Wills are important not just because you get to specify who will receive the property you have upon your death, but also because you get to choose someone you trust to carry out your wishes. This person is called an executor, and this person’s name, rights and duties are spelled out in a will. Your executor, who can also be a beneficiary under your will, is the person you trust to manage the distribution of your property to the beneficiaries. Wills are also important because you can appoint a guardian to take care of your children upon your death. A typewritten, formal will is the most common form and is more likely to carry out the testator’s intent. A typewritten will is actually not required to be notarized in Texas to be valid, but it must meet these requirements:
- In writing;
- Signed by the testator or another person at his or her discretion and in his or her presence;
- Attested (verified) by at least two credible witnesses over the age of 14; and
- Signed by the witnesses in the presence of the testator.
Every properly drafted will should also contain a self-proving affidavit that is signed by the person making the will and the two witnesses in the presence of a notary public who notarizes the document. When a will is executed in this manner, the need to have the witnesses testify at court during the probate process can be avoided, which saves everybody time and money. The person making the document, known as the testator, must meet the following requirements:
- The testator must have legal capacity to create a will in Texas. This means that the testator must be 18 years old or older, married or previously married, or currently serving in the armed forces;
- The testator must also have testamentary capacity which means he or she must be of sound mind at the time of executing the will;
- The testator must show testamentary intent which means that at the time the will was created the testator intended to bequeath or pass down property upon his or her death; and
- The testator must not have been forced or deceived by someone else into creating the will.
A will disposed of most property owned by the person who made it. However, there are several important assets that will not pass through your will. These include IRA’s, 401(k)’s, and life insurance. If you have any of these kinds of assets, you need to complete the beneficiary designation with the plan administrator or the life insurance company. Bank accounts can also be tricky, particularly joint checking accounts, savings accounts and investment accounts. If you want your will to dispose of your interest in these accounts, you should avoid joint accounts, especially survivorship accounts. “Survivorship accounts” have wording such as “Joint Tenants With Right Of Survivorship”, “Community Property With Right Of Survivorship” or “Joint Tenants”. Another Sub-category includes “Pay On Death” (“POD”) or “Transfer On Death” (“TOD”) designations. These types of accounts are sometimes called a “Poor Man’s Will’. While effective in their own right, they are not used for purposes of proper estate planning.