What is a will and why should I write a will?

A will is a legal instrument which states how a person's property is to be distributed at death. A valid will avoids many of the problems that may arise from dying without a will and allows a person to leave property to the persons he or she desires. In addition to naming the recipients of the person's property, the will also designates the individual(s) who will manage the property and care for minor children. In larger estates, the will often contains provisions that minimize estate taxes.

A will can also set up a trust, a method by which property is held by one party (the trustee) for the benefit of another (the beneficiary). To establish a trust, the testator (person making the trust) transfers property, with the specific intent to create a trust, to the trustee who manages and administers the property for the benefit of named beneficiaries. A testamentary trust arises under a will and becomes effective at death. A trust is an effective way of managing property for the benefit of minor or incapacitated persons or persons who are incapable of managing their own financial affairs. A trust also is useful to prevent a spendthrift child from immediately spending his or her inheritance by preserving the funds for the child's education or other important needs. Further, a trust may be used to protect the child's inheritance from the claims of his or her creditors because property placed in a trust generally may not be reached by a beneficiary's creditors until it is distributed to the beneficiary. There also are many other legitimate reasons to create a trust in a will.

I've moved to Texas from Florida, where I had a simple will drawn with my daughter as the only beneficiary. Do I need to get a new will made in Texas?

Yes, you should prepare a new Texas will.

While it is true that Texas recognizes the validity of a will executed in Florida, your daughter will have an easier time probating your will if you have a new one prepared using correct Texas language.

For instance, there is almost no chance your Florida will names your daughter to serve as the "independent executor" of your estate. In fact, she is probably called your "personal representative" which is the lingo used in Florida. Being an independent executor means she will not be supervised by the court, the preferable way to administer an estate. If you don't state in your will that your daughter will be your independent executor, she can still make a special request to the judge after your death asking that she be allowed to act independently, but there is no guarantee that her request will be approved.

Also, the end of your will should have what is called a "self-proving affidavit" which is a long statement discussing the signing ceremony. Texas has its own unique form of "self-proving affidavit" and it is different from the one used in Florida. It is possible that the judge will refuse to recognize Florida's "self-proving affidavit" thereby causing your daughter unnecessary delays and expenses.

My sole assets are a car, personal belongings and a savings account with less than $50,000 in it. Do I need a will?

You would think there's a simple yes or no answer to your question. But as with so many other legal questions, the answer is: maybe, maybe not.

With regard to your bank account, you can set it up so that it passes to one or more persons who are named as the beneficiaries. This type of account is normally called a "payable on death" or "transfer on death" account. Most, if not all, banks allow their customers to establish this type of account.

If the persons you have named are alive when you pass away, all they will need to do is present the bank with a death certificate, and they will be given the money. However, if you die without having named a beneficiary or if all of the beneficiaries you have named die before you, then some sort of probate will be needed.

In that situation, if you die without a will, your estate would probably be small enough to qualify as a small estate. That means the normal probate process could be simplified by filing a Small Estate Affidavit. The Affidavit will list the properties you owned, and it will state who your heirs are under Texas law. Once an order approving the Affidavit is signed by a judge, your heirs can claim the money by presenting a certified copy of the order to your bank.

If your estate does qualify as a small estate, but you have a will, then your heirs can't file a Small Estate Affidavit. Instead they must take the more expensive route of probating your will. So, depending on the expected size of your bank account, you may be doing your family a disservice by having a will. Wills that transfer property must be probated, and in nearly all situations, that means hiring a lawyer and paying court costs and other fees.

Also, a Small Estate Affidavit will not be available if your savings account contains more than $50,000 upon your death. In such a case, it would be necessary to conduct a formal probate at the courthouse, and having a will would make the probate process far simpler than not having one.

As far as your car is concerned, it can be transferred at death without the need for probate by completing a Form VTR-262 "Affidavit of Heirship for a Motor Vehicle." Your heirs can obtain this form at any county court annex or online at www.dot.state.tx.us. This Affidavit will establish that the car was owned by you, and the persons who inherit your estate will need to sign it. When completing the form, your heirs might also be asked to provide other documentation such as a certificate of title, release of lien, affidavit of physical inspection, bill of sale and/or proof of liability insurance.

The problem with letting your heirs simply use the VTR-262 form is that the car may not be passing to the person or persons you would want. For instance, if you have two children, but you want your car to go to only one of them, then you may want to execute a will which names the one child who will get the car.

Your personal property does not have title, so it's not necessary to probate a will in order to validly transfer ownership to your heirs. It's unfortunate, yet true, that personal belongings are available on a first come, first serve basis to your children, friends and neighbors. You may want to limit the number of people who have keys to your residence and also make a list of who gets what particular items. But don't forget, it's often a free-for-all following a person's death.

Note, however, that if you have minor children, my answer would be yes, you need a will. With a will, you could name guardians as well as a person to serve as trustee or custodian over the children's inheritance.

So, if you set your bank account up properly, if your car will be passing as you would want, and your beneficiaries are all adults, then you don't need a will. On the other hand, it can't hurt to have one just in case it's needed. Like I said: maybe, maybe not.]*

Where is the best place to keep my signed will or other original estate planning documents?

The best place is probably in a safe deposit box because it will protect the documents from theft, fire, accidental loss, and most other types of damage or harm. A potential problem, though, is getting it opened after your death.

If you decide to keep your estate planning documents in a safe deposit box, consider naming a family member or your trustee as a joint holder on the box. That should simplify matters following your death because someone will be able to get into the box without delay. [Also, if you live in a flood zone, be sure to put the document in a water-tight plastic bag. As many shocked Texans have learned, water damage caused by flooding can ruin the contents of a safe deposit box.]

Another place to keep your original estate planning documents is with the attorney who drafted them. However, be aware that there is still a risk of theft, fire, flood, storms, or other loss of the document. Also, what would happen if your attorney were to die or the lawfirm were to cease operations? Or, if you move, you will need to be sure to remember to provide your attorney with your new address and phone number.

Many people keep their original estate planning documents at home in a secure place. If you have a safe at home, that can be a good place to keep them. Be aware though, when thieves enter your home and discover a locked safe, they often take the whole safe thinking they'll find cash and jewelry. The last thing they want is a file containing your estate planning documents, but that's one of the things they'll get if you keep them in your safe. Therefore, unless your safe is bolted to the foundation of your house, it may not be the best place to keep your originals.

Another option with regard to a will is to deposit it with the county clerk's office. Taking this approach can be a great idea, except that you need to be sure your records at home clearly indicate where the original can be found. Moving to a different county or changing your will can cause problems as well.

More people than you would expect keep original wills and other estate planning documents in an air-tight plastic bag at the bottom of their freezers. Freezers are well insulated and heavy, and have a way of withstanding fires, hurricanes, and tornadoes. Also, they don't die or move away, and they are stolen far less frequently than in-home safes.

If someone's will is in a safe deposit box at a bank when he or she dies, how do you get access to it?

There are three ways to get the will out of the box.

The easiest way is if another person is named as a joint holder of the box. That person can retrieve the will with no problems or delays.

If no other person has access to the box, Texas law allows a spouse, child, grandchild or the executor named in the will to examine the contents of the box while in the presence of a bank employee. If a will is found, the bank will be required to send it to the court. Note, though, some banks will give it to your lawyer and allow that lawyer to file it with the court.

Another option is to go to court to request that a judge order an examination of the box. If a will is found, it will be sent to the court. This should be the option of last resort because it takes longer, requires the filing of papers with the court, and usually involves a lawyer and the associated legal fees.

Should I give copies of my will and other estate planning documents to my children and to the executors of my estate?

For some people, their estate planning documents are as private as their income tax returns, and nobody is ever given copies. For other people, estate planning documents are no different than a spare key to the house, and every family member and executor and/or trustee named in the documents is given a copy.

If you are the type of person who values your privacy, who does not especially trust your children, executor, or trustee, or if you have written a will or trust which does not treat all the children equally, then it may not be a good idea to hand out copies. Also, you may have more money than your children expect, and depending on how your will or trust is written, giving them a copy may be letting them know too much about your personal business.

On the other hand, if you have a fairly open relationship with all your children, you regularly discuss finances with them, and you are leaving your estate to them in equal shares, then go ahead and give everyone a copy. Of course, if you decide to change your will or revocable trust, you should be sure to give all the same people copies of the new documents. If you don't, then there may be some arguments following your death over which document controls the disposition of your estate.

I have a will and I want to make a minor change. Is there a way for me to make the change myself without hiring a lawyer.

Yes, there are a few ways. One way is to make the change yourself by writing an amendment to your will (called a "codicil") entirely in your own handwriting. You should be sure to date and sign the new document and clearly state which section of your will you are modifying. When you write a codicil by hand, no witnesses or notary are required. You could also type the codicil, but if you do, you will need two witnesses to the signing.

Another option is to go to a book store and purchase a will kit or to a computer store and purchase will drafting software. Most will kits and software programs will tell you exactly how you should go about making a change to an existing will.

Of course, if the change is important and you want to be sure it's done right, you should not try to make the change yourself, but instead you should hire a lawyer to prepare a codicil for you.

What is a holographic will, and how does it work?

A "holographic" will is a will that is written entirely in your own handwriting.

No witnesses are required, and no portion of the will may be typed. If you type some or all of the words, or you incorporate other markings or other documents into the text, you could inadvertently invalidate the will. The idea behind holographic wills is that since the entire document is in a person's handwriting, there is no need for witnesses to sign it to establish its validity. Holographic wills don't need to be notarized either, but they do need to be signed.

Most lawyers would tell you it's a bad idea to write your own will because you can easily create ambiguities and other defects that can lead to litigation following your death. This is especially true in second marriage situations when one or both spouses have children from prior marriages or relationships.

If you decide to write your own will, you should be sure to say in the introductory sentence that it is your will, and that you are revoking all prior wills. If you don't revoke all prior wills, your handwritten will and any other wills that have not been revoked will be looked at together to determine who inherits your estate. As you may expect, problems arise when the various documents conflict.

Be sure to identify each bequest clearly and to give away all of your property. A frequent problem with handwritten wills is thatthey list some accounts and properties, but then leave out others. Property that you don't mention in your will passes to your heirs as determined by our legislators in Austin. Your heirs may not be the same persons named in your will. Also, going to court and figuring out who your heirs are can be an expensive and time-consuming matter.

It's often the case that handwritten wills don't name an executor, and the ones that do may fail to state that the executor should serve as an "independent" executor. Failure to name an "independent" executor could result in an administration of your estate which is fully court supervised, expensive, and lengthy.

Another important provision that is often left out of a holographic will is a waiver of bond. When you don't request a waiver, the judge can require that your executor post a bond. Sometimes, it's not possible to even get a bond, and if your executor can get one, it will undoubtedly be expensive.

Lastly, it should be noted that handwritten wills are almost always more difficult to probate than typed wills because courts require two witnesses who are familiar with your handwriting to testify that the will was, in fact, written by you.