A current, legally valid will is the cornerstone of any estate plan. This document lets you specify your wishes for how you want your personal property to be distributed, but it also makes it possible to name guardians for minor children and pets.
You may be wondering: Do you need a lawyer to make a will in Texas, or can you make one yourself? The answer is more complex than many people realize.
Can You Legally Make a Will Without a Lawyer in Texas?
Each state is free to set its own requirements to write a will. Here are some key rules on how to make a legally valid will in Texas:
- The testator, or the person writing the will, must be at least 18 years old
- The testator must be of sound mind
- The will may be attested (typed) or holographic (handwritten)
For an attested will to be legally valid, at least two witnesses (age 14 or older) must watch the testator sign it. Each witness must then sign the will in front of the testator.
Notably, Texas doesn’t require witnesses for a holographic will to be considered valid. However, every word of the holographic will must be in the testator’s handwriting.
Most estate planning lawyers strongly recommend creating a “self-proving” will. During the process of “proving” a will after the testator’s death, a probate court will usually call the two witnesses to testify. A self-proving will has a notarized affidavit attached to it, and the court will generally consider it to be a valid will without needing to hear witness testimony.
So can you write your own will in Texas? You can, but if you make a mistake, it could prove to be costly to your loved ones. If you do choose to make a will on your own, it’s vitally important to verify that it has been executed properly. A will that hasn’t been executed according to state law may be deemed invalid.
When a Simple DIY Will May Be Enough — And When It May Not Be
The answer to the common question, “Do I need a lawyer to write a will?” is heavily dependent on context. Understanding what makes a will legally valid in Texas is part of the picture. But some financial situations are more complex than others, and creating a simple will yourself may only be a viable option in certain circumstances.
Situations That May Only Require a Simple Will
A DIY last will and testament may be a workable solution if these scenarios apply to you:
- You have no minor children
- You have basic, uncomplicated assets, like a car, a home, and a bank account
- You want to divide your estate between a few beneficiaries
- You don’t want to create living trusts or other trust structures
When in doubt, it’s best to contact an estate planning attorney. A lawyer can help you avoid confusion and suggest a strategy that may work for your particular needs.
Scenarios That Call for a Lawyer’s Help
For some people, a straightforward last will and testament is sufficient. However, if any of the following apply to you, it may be best to contact a lawyer for help:
- You have minor children you need to appoint guardians for
- You own a business
- You have complex assets
- You need to make sure one or more beneficiaries don’t receive their inheritance all at once
You might wonder why you wouldn’t want a particular beneficiary to immediately access the assets you’ve left them, but this situation is more common than many people realize.
For example, if you want to provide for a child or close friend with special needs, leaving them a large amount of money might make them lose their government benefits. However, if you create a special needs trust as part of your estate plan, you can fund their medical care and other expenses without putting their benefits in jeopardy.
In a similar vein, if you want to leave money to minor children, you’ll need to keep those funds safe until they’re old enough to responsibly manage money themselves. Your lawyer can help you decide what type of trust would best suit your children’s needs.
Common Mistakes People Make When Creating a Will Without Legal Guidance
Do you legally need a lawyer to make a will in Texas? Strictly speaking, you have the right to create your own will. However, if you do so, you should be mindful of these common pitfalls:
Not Paying Attention to Witness Requirements
If you type out a will and sign it alone, that document wouldn’t be considered a legally valid will in Texas. Remember that, for typed wills, your signature must be witnessed by two people who also sign the will in your presence. Ideally, you should use disinterested witnesses, or people who don’t stand to gain anything from your estate.
Using Unclear Language
When writing their own wills, many people use vague language like “my children” or “my car.” To avoid disputes and confusion, always clearly identify beneficiaries and specific assets.
Not Naming a Backup Executor
The executor of your will is the person you choose to oversee the distribution of your assets and the closing of your estate. If your executor dies before you do or otherwise can’t handle your estate, the court will need to appoint an administrator. Naming a backup executor (or more than one) may help save time.
Trying to Include Non-Transferable Property
Many people forget that you can’t use a will to transfer everything you own. For instance, you can’t use your will to leave the money in your retirement account to someone. Instead, you typically need to change the beneficiary designation on the account itself.
If you co-own real estate or other property with someone, you generally can’t use your will to transfer your interest in the property to one of your beneficiaries. The property normally goes to the co-owner in these cases.
Situations Where Hiring a Will Attorney Is Often Worthwhile
If you’ve found yourself asking, “Should I hire a lawyer to make a will?” you are not alone. Having professional legal guidance is never a bad idea, but it’s particularly important in situations like these:
- You want to disinherit one or more family members
- You’re part of a blended family
- You’re a high-net-worth individual
- You have minor children or children with special needs
- You own or co-own a business
- You think you may be liable for estate tax
- You have real property in multiple states
- You have reason to believe one or more beneficiaries will contest the will
Remember that hiring an attorney is an investment. An experienced legal guide can help you make sure that your loved ones are protected long after you’re gone.
Should You Have an Attorney Review a DIY Will?
The DIY will vs. lawyer question is a common one. However, a lot of people don’t realize that this doesn’t have to be an either/or situation.
Even if you’d rather create a will without the help of an attorney, it’s often a good idea to ask a legal professional to look it over after you write it. An estate planning lawyer with a strong working knowledge of Texas law will be able to review your will and point out any potential issues. From there, they can help you make revisions or create a new will if needed.
How Life Changes Can Affect Whether Your Will Still Works
Like other estate planning documents, your will isn’t something you create once and never revisit. As your life circumstances change, your will should evolve alongside them.
Estate planning lawyers often suggest reviewing your will every three to five years. However, as a general rule, you’ll also want to update your will after major life changes like these:
- The birth of a new child
- Divorce or marriage
- Purchase of a new home or other real property
- Death of one or more beneficiaries
- Death of an executor
- Major financial changes
Failing to update your will when necessary can have serious consequences. For instance, if children or grandchildren are born and you don’t change your will to include them, they may not be eligible to inherit anything from your estate.
Wills aren’t the only estate planning documents you should regularly update. Under Texas law, if you get divorced and don’t update your will, your former spouse may not receive any assets from your estate, but beneficiary designations on life insurance policies, retirement accounts, and other financial accounts override your will.
Comparing the Cost of Hiring a Lawyer Versus the Cost of Future Estate Disputes
When they create a will, most people aren’t thinking about what could go wrong. Before an executor can distribute assets according to a will, the document must go through the probate process. This is where the court proves the validity of the will.
Some probate cases are quick and relatively inexpensive. However, the probate process is often long and costly, and it’s also a matter of public record. If a family member believes a will is unfair, probate court gives them a chance to contest it.
Probate court costs can add up quickly, and they’re usually deducted from the total value of the estate. Compared to the cost of hiring a lawyer to create a will, the cost of estate disputes is often astronomical.
How a Houston Estate Planning Attorney Can Help You Make Confident Decisions
Need legal help creating a will? Whether you’re just looking to create a simple will or you need help making an advance directive and other legal documents, working with an estate planning attorney is essential. These are some of the most important ways an attorney can help you:
Creating a Valid Document
Your attorney can verify that your will is properly executed. They can also ensure that it’s written clearly enough to avoid confusion and misinterpretation.
Contingency Planning
What happens if one or more of your beneficiaries are unable to inherit assets, or your chosen executor is unavailable after your death? Your attorney can make sure you and your estate plan are ready for the unexpected.
Incapacity and Advance Care Planning
Part of managing your assets is ensuring you have a plan in place in case you become incapacitated. An estate planning lawyer can draft power of attorney documents for you, and they can also create a living will to outline your wishes for medical care in case you’re unable to communicate.
Do You Need a Lawyer to Make a Will for You?
You don’t want to leave your legacy or the futures of your loved ones to chance. When your will and other estate planning documents are up to date and reviewed by a trusted lawyer, you can have the peace of mind that your family members won’t be left in the dark after your death.
If you’re looking for a will drafting attorney in Texas, the experienced team at Texas Tax & Estate Law is here to assist you. Our last will and testament attorneys do more than just draw up legal documents.
We take the time to discuss your situation with you and help you formulate a personalized, comprehensive plan to support your loved ones after your death. Get in touch with us today to book your consultation.
