Estate Planning in Texas

Married with children (same marriage)

Your spouse inherits all community property. For separate property, your spouse receives one-third of personal property and a life estate in one-third of real property. Your children receive the rest.

Married with children from a prior relationship

Your spouse keeps their half of community property, but your half passes to your children — not your spouse. For separate property, the same one-third/two-thirds split applies. This is where blended families get blindsided: the surviving spouse may receive far less than expected.

Married, no children

Your spouse inherits all community property. For separate personal property, your spouse receives it all. For separate real property, your spouse receives half and the other half passes to your parents or siblings.

Single with children

Your children inherit everything equally.

Single, no children

Your parents inherit equally. If only one parent survives, they split with your siblings. If no parents survive, your siblings inherit. The chain continues through increasingly distant relatives.

What makes a will valid

A written will must be signed by the testator and attested by two credible witnesses. The witnesses must be at least 14 years old and must sign in the testator's presence.

What people think

That notarizing a will makes it valid, or that a holographic (handwritten) will is just as strong as a witnessed will.

What actually happens

Notarization alone does not satisfy the witness requirement. Holographic wills are valid in Texas but are more easily challenged and harder to prove in probate because there are no witnesses to testify to the testator's intent and capacity.

Common failure

Improper witnessing — witnesses who aren't present when the testator signs, witnesses who are beneficiaries, or missing signatures. Adding a self-proving affidavit at the time of execution prevents these issues from becoming problems during probate.

When a trust is better

When you own property in multiple states (each state would require a separate probate proceeding without a trust), when you want to avoid the public probate record, or when you need to manage distributions to minor children over time.

Execution checklist

1. Sign the will in front of two credible witnesses (age 14+)
2. Have both witnesses sign in your presence
3. Execute a self-proving affidavit (notarized) at the same time
4. Store the original signed document securely — copies are not accepted for probate

What it does

Grants authority to a named agent to manage financial and legal affairs on your behalf.

Key rule

Texas recognizes durable powers of attorney, meaning the authority continues even if you become incapacitated. A non-durable POA terminates at incapacity — which is the exact moment you're most likely to need it.

Real-world friction

Banks and financial institutions routinely reject POAs they consider outdated, unclear, or not in their preferred format. Texas law requires third parties to accept valid POAs and imposes penalties for unreasonable refusal, but enforcement requires legal action — which is slow when you need immediate access to funds.

Common mistake

Not specifying durability, granting authority that's too broad or too narrow, or using a form that doesn't match the Texas statutory POA format. Using the statutory form significantly reduces the chance of third-party rejection.

What it covers

Your preferences for life-sustaining treatment and other medical decisions if you become incapacitated and cannot communicate your wishes.

What's different

Texas separates the advance directive (your instructions) from the medical power of attorney (who makes decisions). You should have both — the directive tells the agent what you want, and the medical POA gives the agent legal authority to enforce it.

Execution requirements

Two witnesses required. The witnesses cannot be the attending physician, an employee of the healthcare facility where you're receiving care, or anyone who has a claim against your estate.

Common misunderstanding

Confusing a healthcare directive with a financial POA. They are completely separate documents with different legal authority. A financial POA does not give your agent the right to make medical decisions, and a medical POA does not give your agent access to your bank accounts.

When required

When assets are held solely in the decedent's name without a beneficiary designation, transfer-on-death designation, or joint ownership with right of survivorship.

What makes Texas different

Independent administration — where the executor operates without ongoing court approval — is the default when the will authorizes it. This makes Texas probate significantly less burdensome than court-supervised states.

Probate paths

What people get wrong

Assuming probate is always expensive and time-consuming. In Texas, with a properly drafted will that includes a self-proving affidavit and authorizes independent administration, probate can be straightforward and relatively quick.

When a trust is useful

Avoiding probate entirely, keeping estate details private (wills become public record once filed), managing property in multiple states, structuring distributions for minor children, or protecting assets for a beneficiary with special needs.

When a trust is unnecessary

Straightforward estates with a clear will, a self-proving affidavit, and authorization for independent administration. Texas probate is efficient enough that many estates don't justify the cost and complexity of establishing and funding a trust.

Key mistake

Creating a trust but not transferring assets into it. A trust only controls the assets that have been retitled in the trust's name. An unfunded trust is an empty container, and your assets will still go through probate.

Signing a will without two valid witnesses

The most common reason Texas wills fail. Notarization alone is not enough.

Assuming a notarized will is automatically valid

Notarization does not replace the witness requirement. A self-proving affidavit supplements the witnesses — it doesn't replace them.

Using generic templates not aligned with Texas law

Texas has specific statutory forms for POAs and healthcare directives. Out-of-state templates or generic online forms can create documents that are technically valid but practically unenforceable.

Naming a POA agent without understanding authority scope

A broad POA gives your agent control over everything. A narrow POA may not cover the specific situation that arises. Texas allows you to customize the scope.

Omitting the self-proving affidavit

Without one, your witnesses may need to testify in court. If they're unavailable, deceased, or can't be located, this creates delays.

Creating a trust but not funding it

Real estate, bank accounts, and investment accounts must be retitled in the trust's name. Many people skip this step, rendering the trust useless.

Not accounting for community property

Your will can only dispose of your half of community property and all of your separate property. Failing to understand this distinction creates unintended results — especially in blended families.