Do I need a will? Won't everything go to my wife and kids anyway?

Most people assume that, even without a will, their property will pass to their spouse or children when they die. Although this is often true, dying without a will ("Intestate") can often result in unintended and unwanted consequences. For example, if you die without a will, your separate property will be divided between your surviving spouse (who will receive 1/3 of your personal property and life estate in 1/3 of your real property) and your children (who will receive the remaining 2/3 of your personal property and all of your real property, subject to your surviving spouse's life estate). Additionally, if you have step-children and die Intestate, they cannot inherit from you unless you have formally adopted them. Finally, if you have children from more than one marriage, your current spouse will not automatically inherit your share of community property. Instead, all of your portion of the community property will be divided between your children; none will pass to your surviving spouse. For these and other reasons, every person can benefit from the preparation of a simple will.

Do I really need a "formal" will? Can't I just write down what I want my family to do?

Texas law recognizes a handwritten ("holographic") will in certain circumstances, but it must be entirely in your own handwriting - no typed provisions or "fill in the blank" forms - and signed by you. Additionally, the document must clearly demonstrate a present intent to dispose of your property at death. Although such a holographic will can be admitted to probate, it is often subject to challenges concerning its validity or interpretation. Additionally, if your holographic will fails to dispose of all of your property, your estate will still be "partially intestate." Each of these consequences increases costs and time in resolving your affairs and distributing your property to your heirs. As a result, a "formal" written will is the best solution.

Can't I just use a "will kit" without a lawyer?

There can be significant drawbacks to generic wills generated by software or created through "fill in the blank" forms, since they can often lead to unintended consequences or increased time and expenses for probate administration. For example, many "will kits" fail to identify specific provisions available under Texas law to help reduce the need for (and expense of) probate and simply provide a "laundry list" of options that may sound applicable to your situation, but create conflicting or even destructive directions concerning the administration of your estate. "Will kits" may also fail to provide you with sufficient information to ensure that your will has been properly executed in a manner that makes it both legally binding and "self proved." Because your will is an important legal document, it is well worth spending a little extra to ensure that it will be legally recognized by the probate court, minimizes time and costs, and provides clear directions to your executor.