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What is a Will?

Written by Troy Moore

Probate & Personal Injury Trial Attorney in Houston, Texas.

March 26, 2020

Basics of What is a Will

For starters, let’s take a look at the basics requirements of what is a Will.

Texas Estates Code Sec. 251.051.  WRITTEN, SIGNED, AND ATTESTED.  Except as otherwise provided by law, a will must be:

(1)  in writing;

(2)  signed by:

(A)  the testator in person; or

(B)  another person on behalf of the testator:

(i)  in the testator’s presence; and

(ii)  under the testator’s direction; and

(3)  attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.

That’s pretty much it, so far as how a Will can be made.  The first part about “except as otherwise provided by law” is a general referenced to the fact that holographic Wills can be made wholly in the handwriting of the testator.

The noun testator refers to the person who is making the Will.  The Will, in order to be valid for probate at a later date, must be signed by the testator and witnesses to at least two credible witnesses who are at least 14 years of age.

Wills do not have an expiration date.  This author has probate Wills made in the 1960s.  Sometimes, people make Wills and never update them again in their whole lifetime.  The age of the Will does not affect its validity.

Further, the Will maker, or testator, must be of sound mind and at least 18 years of age.  Additionally, the testator must have testamentary capacity to make the Will — this means the testator must understand the document he/she is making.

What is a Will Executor

An Executor is the person who is named in the Will to carry out the terms of the Will.  The Executor stands in the shoes of the Decedent (i.e. the deceased individual we are concerned with at the moment), and can transact any business that is required.  This allows the Executor to transfer title to all assets, including real estate, bank accounts, vehicle titles, personal property, and any other legally owned property of the Decedent.  The Executor’s powers are very broad and far sweeping.  The Executor can essentially do nearly everything the Decedent could do financially while the Decedent was alive.

The Executor must be qualified to serve as Executor of the Will in probate court.

Most often times, the surviving spouse is the Executor of the Will.

What is a Will Probate

In probate court, the Judge appoints the Executor who is designated in the Will.  In order for a judge to make the appointment, a special type of legal lawsuit needs to be filed called a probate of will.  Your probate attorney will help guide you through this process, which is very foreign to most people.

The probate of the Will establishes the legal authority of the Executor over the affairs and property of the Decedent, and allows for the legal transfer of title of all the decedent’s assets to the rightful parties.

The Executor in probate court must be at least 18 years of age, and not be disqualified from serving as an executor.  The most commong form of disqualification of an executor is for a felony conviction.

Probate of a Will is called an Administration of the Will.  The Administration is the process of the Executor being appointed, creditors being notified, beneficiaries being notified, and the access to and ultimate transfer of the property.  If the Will is a self-proved Will, then the administration of the Will is much more streamlined, and so is the proof required to get the Will into evidence at probate court to begin with.

What is a Holographic Will

The above listed requirements of two witnesses are done away with if the Will is a holographic Will.  A holographic will is legally valid if it is wholly made in the handwriting of the testator.  It can even be written on something as basic as a cocktail napkin, post-it note, or, once upon a time, scrawled by an injured farmer on the side of his tractor while he lay dying in the field.

Courts recognize holographic Wills as being valid according to Texas law.

If the handwriting of the testator is in issue, then an independent handwriting expert will need to be consulted for an expert opinion on the handwriting.

What is a Will Trustee

If a Trust is created within the Will (which is quite common), then that is called a testamentary trust.  Such a trust only comes into existence, if at all, once the writer of the Will (i.e. the testator) has died.  In almost every estate planned Will drafted by an estate planning attorney, you can expect to see a Contingent Trust document at a minimum that will become effective if any of the beneficiaries of the Will is under a certain age.  The Trustee in that case is simply the personal representative that is in charge of the Trust, much like how the Executor is in charge of the Will.

The trustee has the checkbook for all trust assets of the beneficiary and is charged with carrying out the terms of the trust, which may go on for years.

A trustee owes a fiduciary duty to the trust beneficiary.  If a trustee dies, resigns, or otherwise refuses to act, a successor trustee will be appointed.  A lot of times, the Executor and Trustee are the same person.

Can a Will be Contested

Yes a Will can be contested.  Although, before going down this road, two things should be examined first.

1.  What is it that the person is contesting?  If it is a complaint that the person is not getting the assets left to him/her in the Will, then everything is fine with that.  Anyone should seek justice if an Executor is not giving them what is due to him/her under the Will.

2.  If you are contesting the validity of the Will as a whole, you must be careful.  Most Wills have a poison-pill provisions called a “No-Contest Clause.”  This states that if someone tries to invalidate the Will, then they will receive nothing from the Will.  If the Will contest if righteous and was truly wrongful however, justice should prevail in the end and the Will would be invalidated, usually due to undue influence being brought upon the Will maker.

Undue influence is when someone badgers someone about changing his/her Will to make that person the beneficiary, essentially against their Will.  A lot of times, we see examples of home health aides or family members that are constantly in the ear of the dying individual, letting them know they are the only one that takes care of them, and that nobody else deserves their property but them.  Then, in a final act just to buy peace, the individual changes their Will, just to get the person to leave them alone about making them their beneficiary.  That is the hallmark situation of undue influence.

What is a Last Will and Testament

A Last Will and Testament is just the long legal terms for what a Will is.  A Last Will and Testament is a legal document that represents the desires of the writer on who gets his property, and the testament is the written evidence of what the writer’s wishes are for disposition of his property once he dies.  The Last Will and Testament is a legally binding document that dictates by law who gets one’s property once they die.

In order for someone to be able to make a Last Will and Testament, the testator, or Will maker, must be at least 18 years of age.  A minor individual may not make a Will, because a minor cannot make any legall binding documents.

Can a Will be Changed by an Executor

No, a Will cannot be changed by an Executor, or anyone, once the testator has passed away.  The Executor’s sole job is to carry out the terms of the Will as written.  So long as the Will is clear and unambiguous, it will be enforced as written.

An Executor owes a fiduciary duty to the beneficiaries of the Will

Can a Will be Changed

Yes, and many folks’ Wills are changed often during their lifetime.  Personal relationships arise, and fall.  Circumstances of life change over time.  As a matter of fact, someone could change their Will multiple times in one day.  Generally, the first few sentences of any Will revokes any and all previous Wills made by the testator.

What Makes a Will Valid

As the statute shows at the beginning of this post, a Will must be in writing, signed by the testator (i.e. the will maker), and at least two credible witnesses who are at least 14 years of age.  Holographic Wills that are wholly in the handwriting of the testator are valid without two witnesses.

A mark can be used in the place of a signature, when the individual cannot write.

A minor may not make a Will.  You must be at least 18 years of age.  Minor children do not have the mental capacity legally to be able to make a Will.

What is a Will and Testament

A Will and Testament is just a shorthand verion of a description of someone’s Last Will and Testament, or, for short, their Will.  This document sets out who gets the person’s property once they die.

What is a Living Will

People commonly confuse a Directive to Physicians with a Last Will & Testament.  The common term for a Directive to Physicians is a Living Will.  A Living Will is vastly different from a Will.  A Will dictates where some person’s property is transferred upon his/her death.  A Living Will spells out what type of care someone wants (or oftentimes does not want) in the event he/she has been diagnosed with an irreversible or terminal condition.  A Living Will is different from a medical power of attorney.

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