Texas Wills


A will is used to provide for the administration of a person's estate upon that person's death. The person creating the will and trust is known as the "testator." It is important for the testator to appoint other persons to administer the Decedent's estate, to make distributions of the Decedent's estate as the Decedent desires, and to reduce the time and expense associated with meeting these goals. Creating a will and probating the will are relatively efficient and inexpensive in Texas when compared to other states, and therefore, is preferred over other estate planning techniques such as the Living Trust, which is popular in California.

The Appointment of Fiduciaries

The will's most important aspect is the testator's appointment of other persons to take those actions desired by the testator. The persons to be appointed as fiduciaries include, as applicable:

The independent executor is the person who gathers and protects the Decedent's assets and distributes them to the Decedent's beneficiaries under the will. A guardian of minor children or incapacitated beneficiaries is a person who takes care of the minor children or incapacitated persons and the assets owned by the minor child or incapacitated person. The trustee of a trust manages the assets gifted by the Decedent to the trustee for management over the term of the trust.

It is important that the will provide that all fiduciaries be properly identified and be able to perform his or her duties without bond.

Distribution of Assets

The second most important aspect of the will is to make gifts of the estate upon death. Wills are most beneficial for married couples and persons with children. In these scenarios, it is the surviving spouse that typically is granted the rights as fiduciary and the right to the Decedent's assets. Upon the death of the second spouse, the assets are typically distributed to the children and, if desired, grandchildren of the Decedent. Specific gifts may be provided to specific beneficiaries.

Trusts and Guardians under the Trust

The will should create trusts and appoint guardians as required for the beneficiaries. In addition, the terms under which the trusts and guardianships are created and the term of the trusts should be set forth in the will. These aspects are complex because each family's dynamics differ and the goals of each testator differ.

Other Aspects of the Will

There are other aspects of the will that should be considered. Those persons who have accumulated assets that exceed the estate tax exclusion must consider the tax aspects of creating the will and providing for bypass trusts and QTIP trusts.