Texas State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

Texas Statutes and Code Annotated
Probate jurisdiction rests with the County or Probate Court
Probate laws are primarily under the Probate Code

Minimum age requirement to:

Distribute property by will: 18, but if married or in the Armed Forces then no minimum age (Section 4-57)
Which minor gets property: 21

Holographic will recognized (Probate Code 4-59)

State taxes:

Estate tax: Equal to federal credit for state death taxes (Tax Code 211-051 to 211-056)
State gift tax:Inheritance tax: No inheritance tax (Tax Code 211-051 to 211-056)
- No state gift tax (Tax Code 211-051 to 211-056)
- Anatomical Gift Act of Texas (Health & Safety Code 166-152)
Inheritance tax: No inheritance tax (Tax Code 211-051 to 211-056)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Probate Code 2-38)

No surviving spouse, but there are surviving children:
- All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
Surviving spouse and
- Children of surviving spouse:
  - One-half (1/2) community property, one-third (1/3) of life estate in separate real property, and one-third (1/3) in separate personal property to surviving spouse, and
  - The other one-half (1/2) of community property, two-thirds (2/3) of life estate in separate real property, and two-thirds (2/3) in separate personal property split equally among the surviving children or grandchildren according to their per stirpes share
  - Children not of the surviving spouse (for example your children from a previous marriage):
    - One-half (1/2) community property, one-third (1/3) of life estate in separate real property, and one-third (1/3) in separate personal property to surviving spouse, and
    - The other one-half (1/2) of community property, two-thirds (2/3) of life estate in separate real property, and two-thirds (2/3) in separate personal property split equally among the surviving children or grandchildren according to their per stirpes share
    - No children and both of your parents of deceased:
      - All community property, separate personal property, and one-half (1/2) separate real property to your spouse
      - The other one-half (1/2) separate real property to your siblings equally or to their children according to their per stirpes shares. If none, then to grandparents or their children according to their per stirpes shares. If none, then to the surviving spouse
    - No children, but at least one of your parents survives you:
      - All community property, separate personal property, and one-half (1/2) separate real property to your spouse
      - The other one-half (1/2) separate real property to your parents if both survive you, but if only one parent survives you, then one-fourth (1/4) of your separate real property to your parents, and the other one-fourth (1/4) to your siblings equally or to their children according to their per stirpes shares. If none, then to the surviving spouse
At least one parent survives you, but no surviving spouse or children:
- All of your estate will pass to your surviving parents equally if both survive you, but if only one parent survives you, then one-half (1/2) to the surviving parent and the other one-half (1/2) to your siblings equally or to their children according to their per stirpes shares. If no siblings, then entire one-half (1/2) to the surviving parent
No spouse, children, or parents:
- Siblings (brothers and sisters) equally or to their children according to their per stirpes share. If none, then to grandparents or the children of your siblings according to their per stirpes share. If none, then one-half (1/2) to maternal grandparents or their children according to their per stirpes share, and the other one-half (1/2) to paternal grandparents or their children according to their per stirpes share

Who must be named as a beneficiary in your will:

Surviving spouse (Probate Code 8-270), andChildren, born or adopted (Probate Code 4-67)
- Surviving spouse must be given one-half (1/2) of all community property (Probate Code 8-270)
Children, born or adopted (Probate Code 4-67)

Effects of changes in your marital status on your will:

You are divorced from the surviving spouse:
- Revokes will as to divorced spouse (Probate Code 4-69)
You get married without changing your will that does not provide for your new spouse:
- Does not revoke the will (Probate Code 4-63)

Out of state executors: Must appoint in-state agent to accept legal papers (Tex. Prob. Code Ann. Section 78)

Witnesses:

Minimum number of witnesses required: Two (Probate Code 4-59)
Are witnesses allowed to be beneficiaries?: Yes; however, any beneficiary named in the will who is also a witness, then the portion of the will to the witness beneficiary will be void over any amount entitled to under state intestate law (Probate Code 4-61)
Requirements to be a witness, witnesses must:
- At least one witness cannot be:
  - related to you by blood, adoption, or marriage,
  - designated to make healthcare treatment decisions about you,
  - entitled to anything in your will, or
  - your doctor or employee of your doctor
  - not be an employee of a healthcare facility in which you are a patient, officer, director, partner, or business office employee of the healthcare facility or any parent organization of you
  - not have any claims against your estate when you die
  - not be finically responsible for your healthcare

Property ownership (Family Code 3-3.002):

Community property state
Bank account deposits held jointly are payable to any survivor named in the bank account
Tenancy by the entirety is not recognized in this state
Tenancy in common is recognized

Other types of wills:

Self-proving wills recognized: Yes, recognized (Probate Code 4-59)
Living will: Directive to Physicians and Family or Surrogate (Health & Safety Code 166-033) requires a certification from you attending physicians that you are in a terminal condition and your death will result without using life-sustaining procedures
Medical Power of Attorney (Health & Safety Code 12-481)
Durable Power of Attorney (Probate Code 482)