Many people put off writing a will because they think their estate is too small, their family too simple, or the subject too uncomfortable. Texas law gives a clear reason to reconsider. If you die without a will, the Texas Estates Code decides who inherits your property, and its answer may not match the one you would have chosen.
Chapter 201 of the Texas Estates Code sets out how property passes when a person dies intestate, meaning without a valid will. The rules turn on whether the person was married, whether there are children, and whether the property is community or separate.
For a person who leaves no spouse, Section 201.001 sends the estate first to the person's children and their descendants. If there are none, it passes in equal portions to the person's father and mother. If only one parent survives, half goes to that parent and half to the person's siblings and their descendants, or all of it to the surviving parent if there are no siblings or sibling descendants.
For a married person, the results can surprise people. Under Section 201.003, the deceased spouse's community property passes to the surviving spouse only if there is no child or other descendant, or if all of the surviving children and descendants are also children or descendants of the surviving spouse. If the deceased spouse had a child from another relationship, the deceased spouse's one-half interest in the community estate passes to the deceased spouse's children or descendants instead.
Separate property follows yet another rule. Under Section 201.002, when the person has children, the surviving spouse takes one-third of the personal estate and a life estate in one-third of the land, while the rest descends to the children and their descendants. So a house that was the deceased spouse's separate property can end up shared between the surviving spouse and the deceased spouse's children, although other rules, such as homestead protections, may also apply.
A will replaces those default rules with your own choices. Subject to limits set by law, Section 251.002 allows a person competent to make a will to devise all of their property, to disinherit an heir, and to direct how property passes. A will also lets you choose who handles the estate. Under Section 304.001, when a court grants letters testamentary or of administration, the person named as executor in the will comes first in the order of priority, ahead of the surviving spouse and other relatives.
A will can also simplify the process for the people you leave behind. Section 401.001 allows a person to provide in a will that no other action shall be had in the probate court in settling the estate beyond probating and recording the will and returning any required inventory, appraisement and list of claims. That is the basis of what Texas calls independent administration.
For parents, a will can also address who would look after the children. Section 1104.053 of the Texas Estates Code allows the surviving parent of a minor to appoint, by will or written declaration, a guardian of the person of the parent's minor children. After that parent dies, the court must appoint the person designated in preference to others, unless the court finds the person is disqualified, has died, refuses to serve, or would not serve the children's best interests.
Under Section 251.001, a person of sound mind may make a will if, at the time the will is made, the person is 18 years of age or older, is or has been married, or is a member of the United States armed forces, an auxiliary of the armed forces, or the United States Maritime Service.
Section 251.051 sets the formal requirements. Except as otherwise provided by law, a will must be in writing; signed by the testator in person, or by another person on the testator's behalf in the testator's presence and under the testator's direction; and attested by two or more credible witnesses who are at least 14 years of age and who sign their names in their own handwriting in the testator's presence. Under Section 251.052, a will written wholly in the testator's handwriting is not required to be attested by subscribing witnesses.
A will can also be made self-proved. Section 251.101 describes a self-proved will as one with a self-proving affidavit, subscribed and sworn to by the testator and witnesses, attached to it. Under Section 251.102, a self-proved will may be admitted to probate without the testimony of any subscribing witnesses, which can help when the witnesses are hard to locate years later.
A will governs property that passes through the estate, but some assets pass another way. Section 111.052 of the Estates Code treats provisions in insurance policies, retirement accounts, pension plans, financial accounts and similar instruments that pay a person the owner designated at death as nontestamentary, which generally means they pass under their own terms rather than under the will. That is why beneficiary forms deserve the same attention as the will itself, and why a complete plan usually pairs a will with a durable power of attorney for finances and a medical power of attorney.
The Bowen Law Firm, PLLC, whose Houston practice includes wills, trusts and powers of attorney, makes the point on its estate planning page that an estate plan is essential for everyone, regardless of the size of their estate. Whether you work with that firm or another, the Texas default rules are a good reason not to wait.
This article is general information, not legal advice. Every family's situation is different; for advice about yours, speak with a licensed Texas attorney.