A Will operates only after death. Having a Will allows you to designate to whom you want your assets to pass. A Will also allows you to appoint the person(s) you want to ensure your requests are carried out by naming them as an executor or executrix. However, there is one thing that many people do not realize - in Texas, a Will is not effective to prove title to, or the right to possession of, any property disposed of by the Will until it is probated”! In other words, the Will itself does not have any legal value until it is probated.
Upon death, title to the deceased person’s property passes immediately to the beneficiaries under their Will (or to their heirs-at-law if they die without a Will.) However, there must be an actual transfer of ownership of the property by proving the Will in court. Or if there is no Will, ownership will be transferred after a court determines who are the deceased person’s legal heirs.
A Will does not just include sections naming your executor and to whom you want your property to go. At Hartsfield Law, I generally include a section in which you make known your wishes regarding the disposal of your remains. (This came after a judge in one of my probate cases issued an injunction halting a funeral because family members did not agree on disposal of their loved one’s remains.)
The purpose of another section included in the Wills I draft is to refer the court to a separate legal document that details who you want to be named as guardians of your minor children. The reason I draft this guardianship in a separate document is because a Will only becomes valid at your death when it is probated. What happens if you are mentally disabled after an accident and are unable to care for yourself, much less your children? Your Will cannot be probated unless you are dead, so it is ineffective in such a situation. Another reason I choose to use a separate legal document for guardianship designations for minors is because as your child gets older, the individuals you named when he or she was small may not make the best guardian for a pre-teen. The separate document allows us to make the necessary changes without disturbing your Will.
Finally, unless a client tells me otherwise, another section I always include in a Will is the.in terrorem clause. This is also called a “no contest” provision. Its purpose is to head off the family member who always likes to “stir up” trouble. This clause basically provides that if a beneficiary files a will contest with the court for no valid reason, he or she will lose their inheritance.
In your lifetime, you can make as many Wills as you like, but every time you make a new one, there is the presumption you revoked the prior Will. There can only ever be one valid Will at a time. The Will presented to the court after your death must be the original Will. The absence of an original can create a legal presumption that it was revoked or purposely destroyed.
A Will can be very simple, or it can be very complex with multiple types of trusts. Every individual and every family has their own unique needs. Your Will should be drafted to reflect the specific needs of your family. There is no such thing as one-size-fits-all when it comes to making a Will.