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Will – What does it do, and does everyone need one?

A will is a person’s declaration of how his or her probate property shall be distributed after his or her death. A will can also designate who will manage the property, settle the estate, and care for any minor children. Additionally, a person can include provisions in their will that provide guidance when it comes to their burial preferences, funeral service preferences, pet care preferences, and almost any other topic that is important to them.

Some people assume that they do not need a will until they have children or substantial assets; however, this is not the case. If a person owns a car, a bank account, a home, jewelry, pets, or any asset in their name, then we encourage them to have a will in place. This allows them to determine how their estate will pass and who will have the authority to probate the estate. Having a will in place also makes it substantially cheaper and easier for a person’s loved ones to probate the decedent’s estate and distribute estate assets to the beneficiaries under the will.

It’s important to note that, if a person dies without a will, Texas law will determine how his or her property will be distributed when they die. For example, if a married person dies without a will in Texas, the surviving spouse may not inherit all the deceased spouse’s property. This may come as a surprise to the surviving spouse and can also create tension between family members. While having a will in place does not guarantee that there will not be any tension or fighting upon a person’s death, it may decrease the likelihood of it.

While a will controls all estate assets, a will does not control the disposition of “non-probate” assets. Non-probate assets include assets that pass according to the beneficiary designation or by right of survivorship. For example, life insurance policies, IRAs, employee benefit plans (including pensions and 401Ks) and “pay on death” (POD) or “transfer on death” (TOD) accounts generally pass outside the will to the persons named in the beneficiary designations. Similarly, property held by the decedent and another person as joint tenants with right of survivorship passes outside the will directly to the survivor. It is very important to periodically review the beneficiary designations of any assets that will pass by contract and to look at the styling of any assets that will pass by survivorship. These should all be coordinated within your overall estate plan.

Again, there are a variety of advantages to having a will in place. Not only does it allow a person to decide how his or her estate will be distributed and who will have authority to probate the estate, but it also provides guidance and clarity when it comes to his or her intentions and preferences. Additionally, it is generally much cheaper, easier, and faster to probate a valid, properly drafted will (compared to probating an estate where the decedent did not have a valid will). As a result, we highly encourage all our clients to have a will in place. We also encourage our clients to review their wills every 3-5 years and update them when any significant life changes take place, such as moving, marriage, divorce, or a birth or death in the family.

Lauren M. Miller

Lauren M. Miller is an Associate in the San Antonio office of Langley & Banack, focusing primarily in Estate Planning and Probate Law. Ms. Miller was admitted to the State Bar of Texas on October 25, 2019. Lauren was born and raised in San Antonio and graduated from Saint Mary’s Hall in 200...


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