Death affects people in many ways. It never is timely. Death confronts the family with bereavement, with the need to
readjust emotionally and financially, and often with an unknown future. Death is not only a personal issue but a legal one
as well. A death certificate must be issued, and the estate of the deceased individual (the decedent) must pass to others.

Dying Intestate (Without a Will)

In Texas, property is characterized as separate or community. Separate property is that owned before marriage or
acquired during marriage by gift or inheritance. Damages awarded during marriage from a personal injury lawsuit, except
damages representing the loss of earning capacity, also are separate property. Community property is all property, other
than separate property, that is acquired by either spouse during marriage. Thus, there can be separate real property,
separate personal property, community real property, and community personal property. When a person dies without a
will, a legal instrument that states how the testator’s property is to be distributed at death, the law determines who are the
heirs, and assets are disposed of according to whether they are community or separate property. If a person dies without
a will, the law disposes of his or her property. The public policy of statutes governing the intestate distribution of property
is to provide for the orderly distribution of property at death. The law does not play favorites, so the distribution is
determined by how closely the heir was related to the decedent, not by how wonderful one was to the decedent. Dying
without a will may trigger undesired results and unexpected costs and delays.

Executing a Will to Achieve Desired Property Distribution

A testator is a person who leaves a will in force at his or her 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 person(s) he or she desires. In addition to
naming the recipients of the testator’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 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 when the testator dies. 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.

Requirements for Execution

For a will to accomplish any or all of these results, it must have been properly signed. Texas recognizes three kinds of
wills: oral; handwritten (holographic); and typewritten (formal). To execute any of these wills, the testator must meet the
following requirements:

1. is at least 18 years of age, married, or serving in the armed forces;
2. is of sound mind at the time of execution;
3. not unduly or fraudulently induced (forced or deceived) to make the will; and
4. has testamentary intent (present intent to bequeath property at death).

Additional requirements must be met for each type of will.

Conclusion

If you die without leaving a will, you risk that your property will not be distributed as you desire. Even when the heirs at
law are the same as you would have selected yourself, there is no advantage to letting the law take its own course. The
advantage lies in dying with a will. With a well-drafted will you can avoid legal pitfalls, name an executor of your estate,
name a guardian for your minor children, establish trusts, minimize estate tax liability, and minimize probate-related costs
by providing for independent administration. Although a will can be challenged in court, the grounds for contest in Texas
are few, and the law favors carrying out the decedent’s intent. Executing a will is not as complicated or as expensive as
you might think. You are encouraged to talk with an attorney about wills, trusts, and estate administration and to have a
will prepared by the attorney.
WILLS
The following was taken from the December 2008 Texas Bar Journal

The Law Office of Jeffrey R. McCombs, P.C.
3603 W. Pioneer Parkway, Suite B,Arlington, Texas 76013
817-860-2500
Our price for an attorney consultation for a small estate will, statutory durable power of
attorney, and physician's directive is $300. You will receive all three documents at the time of
the appointment as well.

If you prefer, you may complete and return the will questionnaire for preparation of the
documents at a reduced rate. Contact us for more details.