As recommended by the Texas Bar Association, although you may be able to draft your own will, an experienced lawyer should help you draft it, since your will controls the disposition of your assets when you die. Furthermore, a probate attorney can help you comply with the testamentary requirements to draft a legally binding will and can help your estate from expending money on probate issues you could have avoided with proper legal advice.
If a probate court determines that your will is invalid, your estate is subject to the Texas intestacy laws. Intestacy laws govern property distribution for residents who die without valid wills or without creating them. The Texas Probate Code establishes a lineal order of priority giving your closest surviving descendants and your surviving spouse rights to inherit your property before other blood relatives. In most cases, the Texas intestacy laws do not give non-blood relatives rights to receive property from your estate absent clear and convincing evidence otherwise. Typically, a written will is the only legal method that non-blood relatives can prove that you intended to leave your property to them.
In your will, you can name an executor to serve as the individual who will be responsible for making sure that your probate property passes to your beneficiaries. An executor is also responsible for making sure that your creditors are paid for their debts if you legally owed them. Typically, secured creditors receive payment first, and then, unsecured creditors or those without a right to collateral, receive payments. If you do not name an executor or you die without creating a will, a Texas probate court will appoint one on your behalf. Your close relatives have rights to serve as your administrators or personal representatives, but other heirs and the Texas probate court can reject their appointments.
Stephen A. Mendel, Estate Planning Attorney
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