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Which Will is the Right Fit? Breaking Down the Basic Types

Updated: May 17

What is a Last Will and Testament?
Which Will is Right For You?

Thoughtful estate planning allows us to care for our loved ones even when we can no longer be with them. For most, the first step in this journey is outlining their wishes and intentions for their estate in a last will.

But with so many different types of wills available, how do you know which is the right fit for your situation? Basic wills, holographic wills, and pour-over wills all have different purposes.

To light your way, our will lawyers will explore the key aspects in everyday terms.

By understanding what makes one will different from another, you can embrace peace and purpose as you plan.

What is a Last Will and Testament?

First, let’s review the basics. A last will and testament is a legal document communicating a person’s final wishes regarding their property and dependents.

It identifies beneficiaries who will take from the estate and an executor to oversee the estate settlement. Wills may also outline arrangements for heirs requiring special care.

Elements that all wills have in common include:

  1. Naming beneficiaries to receive property/assets.

  2. Appointing an executor to handle estate administration.

  3. Directing asset distribution to beneficiaries.

  4. Nominating guardians for minor children.

  5. Establishing trusts to manage assets.

  6. Covering debts, taxes, and expenses.

  7. Outlining funeral and burial instructions.

Crafting a customized will allows you to distribute your property as intended, avoiding disputes between heirs. It also helps minimize estate taxes to preserve more value for your beneficiaries.

Legal Will Requirements in Texas

For a will to be legally valid in Texas, it must hold specific criteria:

  1. Testator (person making the will) must be at least 18 years old.

  2. Testator must be of “sound mind” when making/signing the will.

  3. Will must be signed by the testator.

During the execution of the will, these additional requirements apply:

  1. Have at least two credible witnesses aged 14+ sign

  2. Notary, optional, though recommended.

Meeting these elements of a valid will ensures the document accurately reflects your intent and will stand up to legal scrutiny after you pass away. Our estate planning attorneys stay current on the state’s will drafting rules.

One Size Does NOT Fit All: Types of Wills in Texas

Texas recognizes several types of wills, each with pros and cons and specifics regarding creation and use.

Formal or Attested Wills

These testamentary documents are the most commonly used in Texas. The testator and two witnesses aged 14 and over must sign formal or attested wills in each other’s presence. After proper execution, the witnesses sign an affidavit swearing the testator wasn’t incapacitated or under duress.

Key attributes of a formal will include:

  1. Testator signs in the presence of two witnesses aged 14 years or older.

  2. Witnesses sign affidavits regarding the testator’s capacity.

  3. Holds clear and unambiguous terms.

  4. Higher fraud protection with witnesses.

  5. Attorney drafted and reviewed (recommended).

This will type provides excellent fraud protection and minimizes uncertainty when interested parties question its validity. The witness requirement prevents undue influence, fraud, or coercion on the testator.

At the same time, the affidavits deter disputes over testamentary capacity questions. For those with substantial assets or complex estate plans, a customized formal will crafted by a probate attorney is ideal to ensure optimal execution of your wishes.

Holographic or Handwritten Wills in Texas 

Holographic wills are written, dated, and signed in the testator’s handwriting. No witnesses are required. And the testator can create the instrument privately without legal help. Flexibility and convenience make these testamentary documents suitable for those with minimal assets or simple wishes.

However, the lack of witness testimony and potential ambiguity in its handwritten terms make will challenges more likely after the testator passes away.

Attributes of a Valid Holographic Will:

  1. Entirely in the testator’s handwriting.

  2. Dated and signed by the testator.

  3. No witness requirements.

  4. Convenience for simple estates.

  5. Risk of unclear terms or instructions.

When properly executed, heirs and beneficiaries can readily admit these wills to Texas probate. The courts often authenticate the testator’s handwriting by comparing it with other samples.

While convenient, the lack of witness protection makes holographic wills more vulnerable to will dispute claims like testamentary capacity or probate fraud. Unclear instructions can also prompt disputes between heirs. Thus, holographic wills are generally best reserved for smaller, simple estates.

Pour-Over Wills

Pour-over wills work in conjunction with separate living trusts that direct property distribution. First, the courts admit the will to probate. Then, any property in the probate court “pours over” into the trust. Often used for larger estates, a living trust handles asset distribution among heirs and beneficiaries according to the trust agreement. A pour-over should only be necessary when the trust is not fully funded.

Key Features Include:

  1. Assets transfer to a living trust.

  2. Pour-over will covers the remaining assets not funding prior to death.

  3. Trust handles principal distributions.

  4. Will ties up loose ends.

  5. Ideal for more extensive or complex estates.

Combining a living trust with a pour-over will let you direct valuable asset distribution through the trust with precision while unfunded assets will be in probate court and poured back into the trust.

When to Modify an Existing Will

Even with a formal valid will in place, changes in life circumstances make periodic modification of your will essential. Some common scenarios that compel prudent updates of testamentary documents include:

  1. Marriage or Divorce – asset distribution and beneficiaries often need modification to reflect new marital status conditions.

  2. Birth or Adoption of Children – reassess guardianship decisions when minors enter your estate.

  3. Purchasing Property outside of Texas – ensure your will is valid under the laws of states where you own property, and review distribution wishes accordingly.

  4. Health Changes – updating is wise if diminished health requires more care oversight for heirs.

  5. Tax Law Changes – revised estate tax exemptions or adjustments may enable your heirs to take more from the estate.

Beyond life events, periodic reviews help catch out-of-date instructions or beneficiary info. We recommend that testators conduct formal will evaluations every 2-3 years. Please reach out if you need assistance amending your will to prevent disputes or unwanted outcomes for heirs.

Tailor Your Texas Will To Your Legacy – Call Now

No matter which type of will you select, periodic updates to your will are essential as life circumstances evolve.

Contact us at Your Legacy Legal Care™ in Texas anytime to evaluate changes and ensure the courts properly fulfill your last wishes.

We offer personalized guidance about each available will type in Texas to serve your unique needs and priorities.

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