Texas Last Will and Testament
A last will and testament is a document that states to whom a person would like his estate distributed upon his death. The person for whom a last will and testament is drafted is called the testator. In Texas, the last will and testament needs two witnesses. To be self-proving, the last will and testament in Texas must also be notarized with a self-proving affidavit. A self-proving affidavit is essentially the testator’s testimony that the witnesses watched him sign the will. The filing of the original will and testament with a self-proving affidavit removes the requirement that the witnesses must testify in open court.
It is customary for a Texas last will and testament to mention the testator’s nearest family relations. The last will and testament will then outline to whom his estate will be distributed. Specific bequeaths, like family heirlooms, a particular car, or similarly defined item, are usually specifically stated, otherwise known as specific bequeaths. After describing all the specific bequeaths, the testator describes how he would like the residue of his estate to be distributed.
The residue of the estate is the uncategorized term used for the portions of the testator’s estate that are not specifically bequeathed. It is common for the bequeath of the residue of the estate to be divided by name or class. A bequeath by name is pretty self-explanatory. “I give, bequeath, and devise the residue of my estate to my wife, Natalie.” A bequeath by class is bit a different. Children and parents are examples of classes. However, the member of classes often changes between the time the last will and testament is executed and the death of the testator. Usually, at least one parent predeceases the testator. Sometimes, children predecease the testator. Therefore, alternative beneficiaries are often included in the testator’s last will and testament in Texas.
Certain class designations inherently included in the class definition. For example, a bequeath to one’s descendants per stirpes allows for the distribution of one’s estate to the surviving members of the testator’s descendant at the nearest generation. For example, children would be the nearest generation. Grandchildren would be the second nearest generation. There are several types of ways to word the distribution so that the bequeath is given as the Testator wishes. It can often be done through the definition of per stirpes in the Texas last will and testament or by using per capita, which is typically used less frequently.
Next, the testator will name the executor. An executor is the person that executes upon the last will and testament upon the death of the testator. The powers of the executor are usually enumerated in the last will and testament. The executor’s duties may vary greatly, but it will usually involve opening a probate case and filing the Texas last will and testament. Thereafter, the court must approve the executor. Then the executor will usually be required to make certain notices and file an inventory and appraisement of claims. Thereafter, the executor usually makes the distributions in accordance with the testator’s last will and testament.
It is incredibly important to keep the original last will and testament easily accessible so that the original may be filed with the court, thus making the probate process much easier. And, as always, it is usually best to have a Texas estate planning attorney prepare the last will and testament.
The Law Office of Robert Newton, PC is a law firm located in Frisco, Texas, that practices in the area of real estate, business, and estate planning. Please feel free to contact the firm for a consultation. The above information was provided for information purposes only and not as legal advice.
