Starting an estate plan can be overwhelming, and you probably have many questions. You are not alone. Below are eight questions people often ask about last wills and testaments as they begin to think about estate planning.
1. Aren't Wills for Wealthy People?
This is a common myth. Last wills and testaments (also known simply as wills) are not just for the wealthy. In a will, you can outline who you want to receive your possessions when you die; this might include your money, your real estate, and items of sentimental value.
If you have children who have not yet reached adulthood, you also would be well advised to have a prepared a valid will in which you name a guardian. Even if you think you do not own enough property to justify a last will, it is important to create one expressing your wishes about how – and to whom – you want your property distributed at your death.
2. Do Wills Expire?
After taking the time to create a will, doing it again is probably the last thing you want to do. Fortunately, a last will does not expire. However, in Texas, you have four years after someone's death to probate their will.
3. Is My Will Valid?
You should ensure that your last will and testament is valid based on your state's law. Each state has specific requirements for wills. Just because its signed, witnessed, and notarized, doesn't make it valid. This is why it is crucial to involve an experienced estate planning attorney in preparing these documents.
If you move to another state, a last will that satisfies the legal requirements in your current state may transfer to a new state. However, you should always consult with an experienced in-state estate planning attorney to review and update your will as needed.
4. Does My Will Control What Happens With All of My Property?
Any property you own solely in your name can pass through your last will. However, you must list the property you wish to have passed to your heirs via your last will. If you leave property out of your will, it may pass on to your heirs, which can happen in several ways. If you have other estate planning documents (e.g., an irrevocable trust), the terms of those documents will govern how the property subject to it passes to your heirs. However, property held in the names of businesses, held in bank accounts, or held investment accounts, may have different designated arrangements, which could frustrate your estate planning goals.
If you die without a will, state law governs the disposition of your property through a body of law called intestate succession. Learn more about intestate succession below.
If you have children who are minors, you can appoint in your will the person you want serving as their guardian in the event of your death. Not having a will could mean that administering your estate incurs additional costs, diminishing any inheritance your kids may have otherwise had received. You may also consider detailing in your will any plans you have in place for your pets.
5. Legally, Do I Have to Have a Will?
No, the law does not require you to create a last will. However, if you die without a valid will, your Texas' intestacy laws will govern who received your property. This means that any wishes you may have had for giving away certain assets to specific people in your life or to a charity you wanted to support will not be taken into consideration.
Dying without a will is called dying intestate. The laws of intestacy or intestate distribution could have undesirable results like half siblings receiving half as much as full siblings or children raised by you but not adopted by you not receiving any inheritance at all.
6. My Surviving Spouse Would Get It All Anyways, Right?
No, your spouse may not immediately inherit your property if you die without a last will. If you pass without a will, depending on who your heirs are at the time of your death, your spouse may only inherit a portion of your estate.
7. My DIY Will Get the Job Done...Right?
Over the past several years, do-it-yourself last wills have become popular. However, you should be cautious about adding a DIY last will to your estate plan, as laws regarding estate planning are complex and can vary widely by state and all DIY wills will meet the requirements of your state's law or the way you may choose to execute them on your own may not meet state law requirements. Some common issues with DIY last wills include:
- A licensed attorney does not usually review them.
- They may not comply with legal requirements for creating a valid will that are specific to your state.
- It may not dispose of your entire estate.
- If you have a blended family or children who are not yet legal adults, or you own a second home or a business, a DIY will may not address all of your unique needs.
8. All I Need Is a Will?
A last will is an important part of your estate plan. It's a good start, but it does not convey certain powers. You may want to consider supplementing it with other key estate planning documents. For example, suppose you become unexpectedly impaired during your lifetime and can no longer handle your own affairs or communicate your wishes. With a durable power of attorney in place, you also can ensure that an individual you trust handles decision making regarding such matters as your financial, legal, and medical needs.
Despite the fact that everyone would benefit from having a will, the majority of Americans have not yet put together any type of estate plan. Consult your estate planning attorney to discuss how to get the most out of your estate plan.