Wills

The lack of a Will can cause surviving family members enormous grief and significantly higher costs at a time when they are emotionally less capable of dealing with the circumstances. Furthermore, a Will allows one’s estate to pass as one wishes, rather than having his or her property distributed according to the laws of the state that dictate who gets what property when someone dies without a Will. Scott Markowitz believes that proper estate planning is truly an act of love for one’s family.

Nuncapative Will

A Nuncapative Will is one that is made verbally. This type of Will should never be utilized if there is the time and circumstances that permit the use of another form of Will. This form of Will is not favored by the courts and requires credible evidence of very specific circumstances.

(1) The declarations of the testator (the person making the Will) must occur in the person’s home, or where such person resided for 10 or more days before making the declarations or if the testator was taken from his/her house when ill and died prior to returning;

(2) There must be three credible witnesses who are requested by the testator to be present and to witness the declarations to be made. These three witnesses must be available at a later time of probate, and their testimony must substantially agree to the declarations made by the testator, and the distribution of property desired.

(3) This form of will may be probated only if the testator had no opportunity to subsequently prepare a written will. Furthermore, if six months pass after declarations which were intended to be a nuncupative will, evidence of such declarations may not be considered unless the declarations were reduced to writing within six (6) days of such declarations.

Holographic Will

A Holographic Will is one that is totally in the testator’s handwriting, and it must identify the testator by name. A typewritten, or printed form of will, merely signed by the testator is not a holographic will. The document must show that there is testamentary intent - that is- that the testator intends that the document be utilized for administration of one’s estate and distribution of assets and handling of debts. The document must show that the testator has testamentary capacity - that is - the legal capacity to make such a document at such time. When made correctly, a holographic will has the same legal effect as an attested written will. If a will is in the handwriting of the testator, but also contains other printed words, or even the handwriting of another person, the Will may be admitted to probate, but all contents other than the handwriting of the testator will be excluded and given no legal effect. As one can imagine, this is not the best method of making a will because often, the intent of the testator is not clear and the genuineness and the circumstances in which the document was made is often suspect.

Attested Written Will

An Attested Written Will is the most preferred method of assuring that one’s estate will be administered and distributed according to the wishes of the testator, especially when such will is written and signed with the consultation and advice of an attorney. This form of will follows the specific requirements of the Texas Estates Code, is usually in printed form, although it may be handwritten, and is signed in the presence of two witnesses and a notary in a very specific order. When made and signed correctly, the Will becomes self-proven, meaning that witnesses will not have to be in court to prove up it’s validity. When a self-proven will is offered for probate, the process is usually very short, and cost effective.

Store bought forms, or internet wills are often enticing because of cost considerations, and often can produce the results sought by one desiring to make a Will. However, it is not only the content of a will that is important, but the method of signing must be proper. While cost is a relevant consideration when considering the making of such an important document, the cost associated with utilizing an attorney to assure the proper drafting and formal signing of a will is small when compared to the cost of defending a will in court should a contest be made by a third party.