A will is an instrument that legally enables you to give your possessions to family, friends, loved ones and/or a given charity if you so choose.

Why is a will important?

A will helps to avoid a great deal of family tension during an already difficult time. It can also bring down the cost of probate by lowering the number of hours an attorney would require to sort out everything that a will would otherwise call for the distribution of.

Who needs a will?

Anyone with any property of value should have a will.

Who should draft a will?

An attorney should draft a will. This is because if such a document is not drawn up correctly, the court will reject it and/or it will not accomplish the goal for which it was intended.

What are the requirements for a will?

In the state of Texas, the requirements are as follows:

  • that the provisions in the will be clear as to what property is being provided for
  • that the person who signs the will (also known as the testator) does so in the presence of two competent witnesses who are 14 years of age or older

If self-proving affidavits are included along with the will, you can eliminate the need for these witnesses to be present whenever the will is probated.

Another important requirement concerns the mind of the testator. This person must be aware of:

  • the kind of property he or she owns
  • who the beneficiaries are
  • the extent of his or her property

What happens in the event that you die without a will?

Texas state law takes over. This means that family members you have never heard of, with whom you have never spoken and/or with whom you have had disagreements, become legally obligated to inherit all property not distributed through a valid will.

What is probate?

Probate is the process of:

  • recognizing distribution rights
  • taking into account the extent of distribution
  • taking care of any claims that may be made against an estate
  • closing out an estate so that the wishes of the testator are carried out.

Can the probate process be streamlined or eliminated?

Probate is a process that can indeed be streamlined. But it can only be avoided in the rare instances when there is no property to deal with.

In the case of community property, when one spouse passes away before the other, the deceased spouse can only divide or give away his or her share of community property. That person cannot will away anything to which he or she is not entitled. Getting together with an attorney in advance can cut out many problems and ensure provision for rights of survivorship.

What are “rights of survivorship”?

Certain kinds of property, such as manufactured homes, can get transferred over to the spouse that survives without having to go through probate.

In the state of Texas, homestead considerations also exist despite what a will says. A surviving spouse has certain rights to the property that they live on even if, for example, the deceased spouse owned the property outright and gave it away to another party.

For assistance with wills and probate anywhere in the South Texas regions of Harlingen, Brownsville and McAllen, contact The Barrera Law Firm.


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