Planning under Texas law

Texas is an unusually favorable state in which to die with a will. Its independent administration procedure lets a properly appointed executor administer an estate with minimal court supervision — no continuing court approval of each transaction, no annual accountings to the judge in most cases, and substantially lower cost than the supervised probate that many other states require.

That advantage is available only if the estate plan is built to capture it. A will that does not direct independent administration, or that names an executor who cannot serve, forfeits most of it.

Davis Law, P.C. prepares wills, trusts, powers of attorney, and deeds for families throughout Hidalgo County and the Rio Grande Valley, with particular attention to the issues that recur here: land held undivided across generations, mineral interests, closely held family businesses, and blended families.

Wills

A Texas will must satisfy Estates Code § 251.051: it must be in writing, signed by the testator or by another person at the testator’s direction and in the testator’s presence, and attested by two or more credible witnesses at least 14 years of age who subscribe their names in the testator’s presence.

A holographic will — one written wholly in the testator’s own handwriting — is valid under § 251.052 without witnesses. Holographic wills are valid, but they are also the single most common source of probate litigation in this region, because they are frequently ambiguous about which property passes to whom, name executors without authorizing independent administration, and are vulnerable to capacity and forgery challenges.

A self-proving affidavit under § 251.104, executed before a notary at the time the will is signed, allows the will to be admitted to probate without locating and producing a witness years later. It costs nothing to add and routinely saves thousands of dollars and months of delay.

Dying without a will

If you die intestate, the Estates Code decides who inherits. The result is often not what people expect, especially in blended families. A surviving spouse does not automatically inherit everything. Where the decedent has children from a prior relationship, the community property estate does not pass entirely to the surviving spouse, and separate real property passes largely to the children subject to the spouse’s life estate in a portion of it.

The practical consequence in the Valley is familiar: a house ends up owned by a surviving spouse together with stepchildren, in undivided fractional interests, with no one able to sell, refinance, or borrow against it without everyone’s agreement. Two generations of that produces the heirs’ property problems described on our partition page.

Powers of attorney and advance directives

A will governs what happens after death. It does nothing while you are alive and incapacitated. A complete plan includes:

• Statutory durable power of attorney (Estates Code Chapter 751) — authorizing an agent to manage financial and property matters. Whether it takes effect immediately or only on incapacity is a decision to make deliberately, not by default.
• Medical power of attorney (Health and Safety Code Chapter 166) — appointing an agent to make health care decisions if you cannot.
• Directive to physicians — the advance directive stating your wishes regarding life-sustaining treatment.
• Declaration of guardian in advance of need — naming who should serve as guardian if a court ever has to appoint one, and, equally important, naming who should not.
• HIPAA authorization — without it, agents and family members are routinely refused information by providers.

The absence of a durable power of attorney is the most common reason families end up in a guardianship proceeding, which is expensive, public, ongoing, and entirely avoidable with documents that take an afternoon to execute.

Transfer on death deeds

Estates Code Chapter 114 allows a Texas owner to record a transfer on death deed naming a beneficiary who receives the property automatically at the owner’s death, outside of probate. The owner keeps complete control during life and can revoke the deed at any time.

Section 114.055 sets the requirements: the deed must contain the essential elements and formalities of a recordable deed, must state that the transfer occurs at the transferor’s death, and — critically — must be recorded before the transferor dies in the deed records of the county where the property is located. An unrecorded transfer on death deed found in a drawer after death is void.

For a family whose principal asset is a homestead, a transfer on death deed is often the most efficient tool available. It is not appropriate in every case — it does not address debts, it can complicate matters where beneficiaries predecease the owner, and it can interfere with Medicaid estate recovery planning — but it deserves consideration before anyone assumes a trust is necessary.

Revocable living trusts

A revocable living trust can be the right instrument for a particular family — commonly where there is real property in more than one state, where privacy is a genuine concern, where a beneficiary has special needs or should not receive assets outright, or where incapacity management matters more than probate avoidance.

But in Texas, probate avoidance alone is a weaker argument for a trust than it is in California or New York, because independent administration is already inexpensive. A trust that is drafted and then never funded — the assets never actually retitled into it — provides no benefit at all and adds cost. If a trust is part of your plan, funding it is not optional paperwork; it is the entire point.

Homestead, exempt property, and the family allowance

Texas gives a surviving spouse and minor children substantial protections that operate independently of the will. Estates Code Chapter 353 governs the homestead set-aside, exempt property, the allowance in lieu of exempt property, and the family allowance for maintenance during the first year after death. Homestead rights and descent are addressed separately in Chapter 102.

These provisions can override a testator’s stated intentions. A will leaving the homestead to adult children does not defeat a surviving spouse’s right to occupy it for life. Plans drafted without accounting for that produce exactly the litigation they were meant to prevent.

Business and land succession

For families holding a business, farmland, or mineral interests, the estate plan and the entity documents have to work together. A will leaving “my interest in the company equally to my children” is meaningless if the company agreement restricts transfers, and a buy-sell agreement with no funding mechanism forces a sale that no one wants.

The same is true of undivided land. Leaving a tract to four children in equal shares creates four cotenants, each with the right to force a partition. Whether that is acceptable depends on the family — but it should be a decision, not an accident.