What are the consequences to loved ones?

One of the essential advance directives is a will. Having a valid will expresses in a legal format how your wishes are to be carried out upon death. With a will, both real property and personal property, passes to the beneficiaries your choose. On the other hand, dying without a will or “intestacy” means the state will distribute the property according to state law.

To Will or Not To Will, a publication by the Texas Young Lawyers Association and The State Bar of Texas, states “When a person dies without a will, the law determines who are the heirs, and assets are disposed of according to whether they are community or separate property.”

Certainly, there are disadvantages to the heirs when dying without a will. For example the distribution of the decedent’s property and assets is delayed. The heirs are determined according to Texas Law and may not be the same as those the decendent intended.

According to the State Bar of Texas handbook, the process involves the following: In most cases, a court proceeding (heirship proceeding) identifies the heirs. The court appointed administrator is responsible for identifying the heirs, inventorying the assets, clearing any debts or claims against settling the estate, and finally distributing the property to the heirs.

During the process, the transfer of ownership of any deeds and certificates of title are usually required. When the heirs are not in agreement, the court decides how and to whom the estate is distributed. Because most court dockets are usually backed up, lengthy delays are usually par for the course. The longer the estate takes to get settled, the greater the cost for legal fees and court costs.

According to the handbook, Texas recognizes three kinds of wills: oral, handwritten and typewritten. The testator (person who is creating the will) must meet the following requirements: be at least 18 years of age, married, or serving in the armed forces; be of sound mind at the time of execution; not be unduly or fraudulently induced (forced or deceived) to make the will; and have testamentary intent (present intent to bequeath property at death).

Additionally, each type of will has its distinctive requirements to be valid. For example, an oral will is valid only for personal property. Real property must be included in a written will. The oral will must be witnessed by at least three credible witnesses if the personal property is valued at more than $30. An oral will must also be probated within six months of the death, unless the testimony was transcribed to a written form within six days after creating the will.

A handwritten will, also referred to as a holographic will, requires the following according to the State Bar: it must be written and signed in its entirety in the handwriting of the testator; typewritten words may not be incorporated into the will, and the wording must reflect a present intent to dispose of property at death. The words recommended by the handbook are “This is my last will and testament” to show this intent. It does not need to be witnessed, but is recommended. The handwritten will has a higher risk of contestability and delays than the typewritten will. If the language is not clear or not properly stated, the court may then have to settle the estate.

A typewritten will, also referred to as a formal will, is preferable to avoid problems or long delays. A lay person can create his or her own, but the State Bar recommends having an experienced attorney draft the will. The following are listed as requirements to assure validity: it must be signed by the testator or another person at his or her direction and in his or her presence; be attested by two credible witnesses above the age of 14; and be signed by the witnesses in the presence of the testator (a beneficiary does not qualify as a witness).

A will should be reviewed for updating and stored for safekeeping. To be assured your will is valid and drafted according to your wishes; consult an attorney experienced in estate law. For more information, visit TexasLawhelp.org or consult an attorney.

Mary Garza Cummings is a free-lance writer. The Town Crier does not warrant the information as valid. It is the responsibility of the reader to ensure validity of the information. If you have questions or comments, email askseniorfocus@aol.com