There are certain requirements for a last will and testament to be valid in Texas including: (1) being of sound mind; (2) being the age of majority (or married or a member of the armed forces of the U.S.); (3) not being unduly influenced; (4) not signing the will under duress; (5) showing testamentary intent; and (6) signed by the person making the will (the “testator”). However, many do not realize there are different types of wills including the following:
(1) Holographic Wills – Besides the requirements set forth above, a holographic (handwritten) will must be wholly in the handwriting of the testator and signed by the testator under Texas law, it does not need to be notarized (unlike typed or word processed wills). Even though the rules for a holographic will are more relaxed, it is generally not recommended to do since (1) sometimes you can’t read the testator’s handwriting; (2) it is often vague or ambiguous; (3) it often fails to have basic information to reduce costs (who is the executor, whether the executor is independent of court supervision and without bond, not dated, etc.). See our article entitled “Is the Handwriting on the Wall a Valid Will?” by clicking here.
(2) Simple Will – A will (not necessarily holographic) that fails to have any contingency planning or any protection for beneficiaries or any tax planning. This is usually an inexpensive will. Usually, those who do simple wills think everything will remain the same and death will occur in natural order. It is better to have a simple will than not having a will (even if you don’t have assets) or even if you have beneficiary designations on all of your assets.
(3) Wills with Testamentary Trusts – A will designed for protection of certain beneficiaries including, but not limited to (1) your grandchildren if your child has marital problems at the time of your passing or you are concerned a son-in-law or daughter-in-law may remarry after your child’s death and pass your assets to an unknown family; (2) any beneficiary who is a minor, incapacitated, disabled, spendthrift or an addict; (3) plan for less taxes in certain situations. See our article entitled “Eight Circumstances to Leave Assets in a Trust for your Beneficiary” and podcast of February 20, 2022 entitled “Circumstances to Leave Assets in a Trust for your Beneficiary” for more detail.
(4) Pour-Over Wills – Usually when someone wants to pass or protect their assets through a trust (typically to a revocable living trust), a pour-over will is necessary in case there is a failure to re-title an asset in the name of the trust (i.e., an account is in the name of the deceased and the account has no beneficiary designation). Thus, it is (in effect) an insurance policy for a mistake by the deceased. The biggest mistake made by those who make revocable living trusts is failing to re-title an asset in the name of the trust since normally the goal is to avoid probate to transfer an asset or pay bills.
(5) Reciprocal Wills – Often married couples have “I love you wills” which are identical wills (i.e., all to spouse or partner and then to children with identical terms). Reciprocal wills are two separate wills. This is not usually advisable if one of the couple had children from a prior relationship. It is not unusual for the surviving spouse of a reciprocal will to change their mind and cut out the children of the deceased spouse unless there is a testamentary trust with protection for the children of the deceased spouse.
(6) Joint Wills – As opposed to each person having their own will, sometimes a married couple or partners sign one will together. This was more common many years ago (1960’s). However, these types of wills spawned much litigation for breach of contract since the will cannot be changed after one spouse dies.
(7) Contractual Wills – Sometimes married couples want their wills contractual – especially in a second marriage or partner situations or when one spouse or partner had significantly more assets than the other. Each spouse or partner would have their own will or it could be joint. The goal is to prevent the surviving spouse or partner from changing the will. The will would need to state that a contract exists and the material terms of the contract. A reciprocal will is not a contractual will (unless it says it is).
(8) Electronic Wills – Although presently only permitted in a limited number of states, this will probably be much more common (if not dominant) in the future. Extra precautions would be mandated for the protection of the testator. In some states (not Texas), this can be done by DocuSign or similar programs. As a result of Covid-19, Governor Abbott issued a temporary order allowing notaries to electronically notarize directives to physicians (living wills), financial and medical powers of attorney as well as the self-proving affidavits of wills (although two disinterested witnesses must be physically present to witness the signing in addition to other precautions). See our article entitled “Will Online (Remote) Notarizations Become the New “Norm”?” by clicking here.
(9) Living Wills – This is not a will like the eight named above. A living will (known as a directive to physicians) is a direction to the doctor if you want or not want to be kept alive even if your illness is terminal (even with life-sustaining treatment) or you have an irreversible condition that is fatal (i.e., persistent vegetative state). However, since there are living trusts (such as a revocable trust), many get confused by the name “living will” as if it is a form of a will – which is not.
If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming virtual or in person Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.