One of our rights is to decide who will get our property when we die. Everyone needs to have a Will for this purpose. The Will controls our probate property. Probate property is property that a person owns in his or her name alone and where there is no beneficiary designation. Probate property also includes property owned with others as tenants in common. In Texas, real estate whether owned by one person or by more will be probate property unless it is held in trust. Non-probate property is described below.
Will Requirements. The laws governing Wills vary from State to State. In Texas, the Will needs to have the correct language in it to make the probate as smooth and simple as possible. For instance, the provisions appointing the executor need to say that the executor is to serve without bond and create an “independent executor.” To create an independent executor, the Will must direct that no action be required in the county or probate court in relation to the settlement of the estate other than the probate and recording of the Will and the return of an inventory, appraisement and list of claims as required by law. The Will should also be Self-Proved. This is accomplished by adding a Self-Proving Affidavit to the end of the Will. It is signed by the person making the Will, the witnesses, and the notary. The Affidavit states that the person and witnesses were in each other’s presence and that the person was of sound mind and at least 18 years old. The Affidavit avoids the need to present witnesses to prove that the Will was properly executed during the probate court hearing.
Simple Wills. A “simple” Will means that the person is leaving their property to their spouse and then equally and outright to their children. If the person is not married, “simple” means that the person is leaving their property outright and equally to their children. Many Wills are not simple, involving unequal distributions or the creation of trusts for children, for loved ones, or for tax and asset protection.
Non-Probate Property. Other types of property may not be controlled by the Will. For instance, Individual Retirement Accounts, annuities, and life insurance are typically controlled by a beneficiary designation. If a person designates a beneficiary and the beneficiary survives, the IRA or the life insurance proceeds will go to the beneficiary named, and a Will has no control of the non-probate property. Husbands and wives frequently set up accounts as joint tenants with right of survivorship (JTWROS). With JTWROS accounts, if one of the tenants dies, the account belongs to the surviving co-tenant. A Will has no function with JTWROS accounts or beneficiary designations, assuming the joint owner or the named beneficiary survives the person.
Simple Estate Planning. Most people’s estate plans are not really very simple. Why? Effective estate planning means coordinating both probate and non-probate property to accomplish their aims. People will want to take care of their spouse and make sure that their children receive their inheritance in the best possible way. For example, people with children under 18 must set up trusts in their Will for their children and name a Guardian for their children.