Top 50 Will & Estate Planning FAQs

Most people know they should have a will. Fewer know what it should say, what else they need, or how Texas law will treat their family if they never get around to it. Our estate planning attorneys hear the same questions again and again, so we’ve collected the 50 most common ones and answered them in plain English.

Use this page as a starting point. When you’re ready to go further, download our free guide, Your Last Chapter: A Guide To and Through Wills & Estates. It walks you through four phases (preparation, plan design, signing and maintenance) and includes a quiz to assess your estate planning needs, an asset inventory worksheet, and worksheets for choosing your executor, guardian, agents and trustee.

Getting Started With Estate Planning

1. What is estate planning?

Estate planning is the process of creating legal documents that say who receives your property, who manages your affairs, and who makes decisions for you if you can’t. A complete plan protects you during your lifetime and after your death. It typically includes a will, powers of attorney, medical directives and, for some families, a trust.

2. Do I need an estate plan if I’m not wealthy?

Yes. Everyone has an estate: bank accounts, a car, retirement savings, a home, personal belongings. Without a plan, Texas law decides who inherits and who is in charge, and those default rules may not match your wishes. Estate planning is also about naming guardians for your children and choosing who makes medical and financial decisions for you, which has nothing to do with net worth.

3. What documents make up a basic Texas estate plan?

Most Texans benefit from these core documents:

• Last will and testament: directs who receives your property and names your executor and guardians for minor children.
• Statutory durable power of attorney: lets a trusted person manage your finances if you become incapacitated.
• Medical power of attorney: lets someone make health care decisions if you can’t.
• Directive to physicians (living will): states your wishes about life-sustaining treatment.
• HIPAA authorization: lets designated people access your medical information.

Many plans also include a declaration of guardian, an appointment of an agent to control the disposition of remains, and, when appropriate, a trust.

4. When should I start estate planning?

As soon as you turn 18. At that age, your parents no longer have automatic authority to make medical or financial decisions for you. Major life events, such as marriage, buying a home, or having a child, are common times to create or update a plan, but there’s no reason to wait for one.

5. How do I prepare for my first meeting with an estate planning attorney?

Preparation is the most important phase, and the one most people skip. Gather your financial records, deeds, account statements, insurance policies and any existing estate documents. List your assets, map out your family relationships, and consider who you trust to fill key roles. Our free guide, Your Last Chapter, includes a document checklist and an asset inventory worksheet so you arrive organized, which can save time and legal fees.

6. What is community property, and why does it matter in my estate plan?

Texas is a community property state. Generally, property either spouse acquires during the marriage is owned equally by both spouses, while property owned before marriage or received by gift or inheritance is separate property. In your will, you can only leave your own separate property and your half of the community property. Knowing which is which shapes how your plan works, especially in blended families.

7. Who should I choose as my executor?

Your executor (Texas law also uses the term “independent executor”) gathers your assets, pays debts and distributes property under your will. Choose someone who is trustworthy, organized and willing to serve, and name at least one backup. The person doesn’t have to live in Texas, but an out-of-state executor must appoint a Texas resident agent to accept legal papers.

8. Who should I name as guardian for my minor children?

Think about who shares your values, has the time and stability to raise your children, and has a good relationship with them. Consider practical issues such as age, health, location, and whether moving would disrupt your children’s lives. Name a backup in case your first choice can’t serve. Without a designation, a court decides, and family members may disagree.

9. Can I name different people for different roles?

Yes, and many people do. The best guardian for your children may not be the best person to manage their money. You can name one person as guardian, another as trustee of the children’s inheritance, a third as executor, and someone else as your medical agent. Separating roles can add checks and balances.

10. How much does estate planning cost?

Cost depends on how complex your situation is. A will-based plan for a single person costs less than a trust-based plan for a blended family with a business. Many firms, including ours, can discuss pricing at the initial consultation. Coming prepared with your documents and decisions, as our guide walks you through, can keep costs down.

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Wills in Texas

11. What makes a will valid in Texas?

Generally, the person making the will (the testator) must be at least 18, married or serving in the armed forces, and of sound mind. The will must be in writing and signed by the testator. A typed will must also be signed by two witnesses who are at least 14 years old and who sign in the testator’s presence.

12. What is a self-proving affidavit, and do I need one?

A self-proving affidavit is a notarized statement signed by you and your witnesses at the time you sign your will. It confirms the will was properly signed. It isn’t required for a valid will, but it is strongly recommended because it allows the will to be admitted to probate without tracking down the witnesses to testify, which can save your family time and expense.

13. Are handwritten wills valid in Texas?

Yes. Texas recognizes a holographic will, one written entirely in the testator’s own handwriting and signed by them, even without witnesses. But handwritten wills often cause problems: unclear wording, missing provisions, questions about whether the handwriting is genuine, and extra steps in probate. A professionally drafted will is far less likely to be challenged.

14. Can I use an online or do-it-yourself will?

You can, but there are risks. Generic forms may not account for Texas community property rules, may be signed incorrectly, or may leave out important provisions such as independent administration, waiver of bond or trusts for minor children. Mistakes usually surface only after death, when they can’t be fixed. If your situation involves children, a blended family, real estate or a business, attorney guidance is especially valuable.

15. What should my will include?

A well-drafted Texas will typically names your beneficiaries and what each receives, names an executor and backups, requests independent administration, waives bond, names guardians for minor children and sets up a trust for any beneficiary too young to manage an inheritance. It should also say what happens if a beneficiary dies before you.

16. What is independent administration, and why does it matter?

Independent administration lets your executor settle your estate with minimal court supervision once the court appoints them. Instead of asking the court for permission at each step, the executor can pay bills, sell property and distribute assets on their own. It is generally faster and less expensive than dependent administration, and a well-drafted will requests it.

17. Can I disinherit a family member?

Generally, yes. Texas doesn’t require you to leave property to adult children or other relatives. To avoid confusion, a will should clearly state the intent to disinherit. A surviving spouse is treated differently: your spouse already owns half of the community property, and Texas law gives a surviving spouse certain homestead and other protections that a will can’t simply override.

18. What happens if a beneficiary dies before I do?

It depends on your will and Texas law. A good will names alternate beneficiaries. If it doesn’t, Texas’s anti-lapse rules may pass the gift to the deceased beneficiary’s descendants in some situations, typically when the beneficiary was your descendant or another relative. Otherwise, the gift may fail and pass under other parts of your will. Clear drafting avoids guesswork.

19. Can I leave money to my pets?

Not directly, because pets can’t own property. Texas does allow a trust for the care of an animal that’s alive during your lifetime. You can also leave a pet, plus money for its care, to a trusted caregiver in your will.

20. Where should I keep my original will?

Keep it somewhere safe that your executor can access, such as a fireproof safe at home or with your attorney. Be cautious with a bank safe deposit box, because it can be hard for family to access after your death. Texas also allows you to deposit your will with the county clerk. Whatever you choose, tell your executor where it is. If the original can’t be found, Texas courts may presume you revoked it.

21. Can I make changes to my will by writing on it?

No. Crossing out or writing on a signed will can create confusion, invalidate parts of it or prompt a dispute. To change a will, sign a new will or a formal amendment called a codicil, with the same formalities as the original will.

22. Can someone contest my will?

Yes. An interested person, such as an heir or beneficiary, can challenge a will, often claiming lack of mental capacity, undue influence, fraud or improper signing. In Texas, a will contest generally must be filed within two years after the will is admitted to probate, with some exceptions. A professionally drafted and properly witnessed will, a self-proving affidavit and a no-contest clause can all reduce the risk. Texas generally enforces no-contest clauses, but not against a person who had good cause and acted in good faith in bringing the challenge.

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Trusts

23. What is a trust?

A trust is a legal arrangement in which one person or institution (the trustee) holds and manages property for the benefit of others (the beneficiaries) under written instructions. The person who creates the trust is often called the grantor or settlor. Trusts can take effect during your lifetime or at your death through your will.

24. What’s the difference between a will and a revocable living trust?

A will takes effect only at death and generally goes through probate. A revocable living trust is created during your lifetime. You transfer assets into it and usually serve as your own trustee. At your death, your successor trustee distributes or manages the trust assets without probate. A trust can also manage your assets if you become incapacitated. Even with a trust, you still need a will, often called a “pour-over” will, to catch any assets left outside the trust.

25. Do I need a living trust in Texas?

Not necessarily. Probate in Texas is often simpler than in many other states, especially with a well-drafted will that allows independent administration. A living trust may make sense if you want privacy, own real estate in more than one state, have a blended family, want to control how and when beneficiaries receive money, or want to plan for incapacity. The quiz in Your Last Chapter can help you gauge whether a trust may fit your goals.

26. What’s the difference between a revocable and an irrevocable trust?

You can change or cancel a revocable trust at any time during your lifetime, and you keep control of the assets. An irrevocable trust generally can’t be changed or revoked once it’s established. Because you give up control, an irrevocable trust can be used for goals such as asset protection, certain tax planning and special needs planning.

27. Does a revocable living trust protect my assets from creditors or lawsuits?

Generally, no. Because you control a revocable trust and can take the assets back at any time, the law typically treats those assets as yours, so they’re available to your creditors. Asset protection usually requires other strategies, such as certain irrevocable trusts. Texas also offers significant protections for homesteads and certain retirement accounts.

28. What does it mean to “fund” a trust?

Funding means transferring ownership of your assets into the trust’s name, for example by signing a new deed for your home or retitling bank and brokerage accounts. A trust controls only the assets it owns. An unfunded trust is one of the most common estate planning mistakes, and it can send assets through probate anyway.

29. How can I leave money to a child or a beneficiary who isn’t good with money?

A trust lets you set the terms. Rather than handing over an inheritance outright, you can have a trustee distribute money for education, health and support, or release it in stages at certain ages. Without a trust, a minor generally can’t receive an inheritance directly, and a court may need to get involved. Once the child turns 18, they may receive everything at once.

30. How do I provide for a loved one with special needs?

A supplemental needs trust (also called a special needs trust) can hold an inheritance for a person with a disability without disqualifying them from means-tested benefits such as Medicaid or Supplemental Security Income (SSI). Leaving money directly to that person could jeopardize those benefits. These trusts must be drafted carefully, so talk with an attorney experienced in special needs planning.

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Powers of Attorney, Medical Directives and Incapacity

31. What is a durable power of attorney?

A statutory durable power of attorney lets you name an agent to handle financial matters for you, such as paying bills, managing accounts, handling real estate and dealing with taxes. “Durable” means it stays effective if you become incapacitated, which is when it matters most. In Texas, it must be signed before a notary. If your agent will use it for real estate transactions, it generally must be recorded in the county records.

32. What is a medical power of attorney?

A medical power of attorney names an agent to make health care decisions for you when your doctor determines you can’t make them yourself. Your agent should know your values and be willing to follow your wishes. In Texas, it is signed before two qualified witnesses or a notary.

33. What is a directive to physicians, or living will?

A directive to physicians states your wishes about life-sustaining treatment if you have a terminal or irreversible condition. It guides your doctors and your medical agent, and it spares loved ones from guessing what you would want during a very difficult time.

34. Why do I need a HIPAA authorization?

Federal privacy law (HIPAA) restricts who can access your medical information. A HIPAA authorization lets the people you choose speak with your doctors and get your records, even if they aren’t making decisions for you. That way, family members can stay informed and help coordinate your care.

35. What happens if I become incapacitated without these documents?

Your family may have to go to court to get a guardianship before anyone can manage your finances or, in some cases, make medical decisions for you. Guardianship can be expensive, time-consuming and public, and the court, not you, decides who is in charge. Powers of attorney and medical directives usually avoid that process entirely.

36. What is a declaration of guardian?

Texas allows two kinds. One names who you want to serve as guardian of your minor children if you die or become incapacitated. The other names who you would want as your own guardian if you ever need one. It can also name people you specifically do not want to serve. Courts give these declarations significant weight.

37. Who decides about my funeral, burial or cremation?

Texas law sets an order of priority, generally starting with a surviving spouse and then adult children, parents and other relatives. If you want a specific person to make those decisions, or you’re worried about family disagreement, you can sign an appointment of agent to control disposition of remains. You can include instructions for burial, cremation and memorial services.

38. Do my adult children need their own powers of attorney?

Yes. Once a child turns 18, parents generally lose automatic access to their medical information and authority over their finances. A medical power of attorney, durable power of attorney and HIPAA authorization let parents step in during an emergency. This is especially important for students heading off to college.

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Probate and Dying Without a Will

39. What is probate?

Probate is the court process for proving a will is valid, appointing an executor or administrator, paying debts and transferring property to the people entitled to it. In Texas, probate often begins with an application filed in the county where the person lived. A hearing can generally take place after a short notice period.

40. Is probate in Texas difficult or expensive?

Compared with many states, Texas probate can be relatively straightforward, particularly when a valid will allows independent administration. Time and cost still depend on the size and complexity of the estate, whether there’s a will, and whether family members disagree. Many estates settle in several months; contested or complicated estates can take much longer.

41. Which assets avoid probate?

Several types of assets pass outside probate, including:

• Accounts with a named beneficiary, such as life insurance, retirement accounts and payable-on-death (POD) or transfer-on-death (TOD) accounts
• Real estate transferred by a transfer on death deed or an enhanced life estate (“Lady Bird”) deed
• Property held in joint ownership with right of survivorship
• Assets owned by a funded living trust

Beneficiary designations override your will, so keep them up to date and aligned with the rest of your plan.

42. What is a transfer on death deed?

A Texas transfer on death deed lets you name who will receive your real estate at your death without probate. You keep full ownership and control during your lifetime and can revoke it. To be effective, it must be signed, notarized and recorded in the county property records before your death. An enhanced life estate deed, often called a “Lady Bird deed,” is a similar tool with some different features.

43. What happens if I die without a will in Texas?

If you die without a will (called dying intestate), Texas law decides who inherits, and the result may not match your wishes. The outcome depends on whether you were married, whether you had children, whether your children are also your spouse’s children, and whether property is community or separate. In blended families especially, a surviving spouse may receive less than people expect, and stepchildren generally inherit nothing. A court also chooses who administers the estate and, if needed, who raises your children.

44. If I die without a will, does my spouse get everything?

Not always. If all of your children are also your surviving spouse’s children (and your spouse has no children outside the marriage), your spouse generally keeps all of the community property. If you have children from another relationship, those children generally inherit your half of the community property. Separate property is divided between your spouse and your children under a different formula. Because the rules are complex, a will is the best way to make sure your spouse is provided for as you intend.

45. What is a muniment of title?

A muniment of title is a simplified Texas probate procedure. The court admits the will to probate and the order itself serves as proof of ownership transfer, without appointing an executor. It is generally available when the estate has no unpaid debts other than those secured by real estate and doesn’t need ongoing administration. It can be faster and less expensive than a full administration.

46. Is there a deadline to probate a will in Texas?

Generally, yes. A will usually must be offered for probate within four years of the person’s death. After that, options become much more limited, and the will may be admitted only as a muniment of title, or not at all, depending on the circumstances. Families should speak with a probate attorney soon after a loved one’s death.

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Keeping Your Plan Current

47. How often should I update my estate plan?

Review your plan every three to five years, and right away after a major life event: marriage, divorce, the birth or adoption of a child, the death of a beneficiary or someone you named to a role, a significant change in your finances, or a move to another state. Also confirm that the people you named are still the right choices and still willing to serve.

48. Does divorce automatically change my will?

In Texas, a divorce generally revokes provisions in your will that benefit your former spouse or appoint them as executor or trustee, unless the will or divorce decree says otherwise. Similar rules apply to certain beneficiary designations, but some accounts, such as employer retirement plans governed by federal law, may not follow Texas rules. After a divorce, update your will, powers of attorney and every beneficiary designation rather than relying on automatic rules.

49. Will my estate owe estate or inheritance taxes?

Texas has no state estate tax or inheritance tax. The federal estate tax applies only to estates above a high exemption amount, which is currently in the millions of dollars per person, so most families won’t owe it. Larger estates and business owners should plan carefully, because the exemption can change with federal law. Income taxes, such as taxes on inherited retirement accounts, can still matter for many families.

50. What should I do about my digital assets?

Digital assets include email, social media, cloud storage, cryptocurrency and online financial accounts. Texas law lets you give your executor or agent authority to access them, and some platforms offer their own tools for naming a legacy contact. Keep a secure, up-to-date inventory of your accounts and a plan for how trusted people can access passwords, and never put passwords in your will, since it can become a public record.

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Ready to Take the Next Step?

Estate planning isn’t about preparing for death. It’s about protecting the people and priorities that matter most. The more prepared you are before you meet with an attorney, the more efficient, cost-effective and personalized your plan will be.

Schedule your estate planning consultation. Varghese Summersett’s estate planning attorneys help families across Texas create plans that reflect their wishes. Call the office nearest you:

Fort Worth	817-203-2220
Dallas	214-903-4000
Southlake	817-415-1575
Houston	281-805-2220

This article provides general information and is not legal advice. Reading it does not create an attorney-client relationship.