Texas Estate Planning: Wills, Trusts, and Probate Basics

Estate planning is the process of putting legal documents in place so that your property, your health care, and your finances are handled the way you intend if you become incapacitated or die. In Texas, the core rules come from two places: the Texas Estates Code, which governs wills, inheritance without a will, powers of attorney, and probate, and the Texas Health and Safety Code, which governs medical directives. This article explains how the pieces fit together and links to detailed guides on each procedure.

What estate planning covers in Texas

A Texas estate plan is a set of documents, each doing a distinct job. Most plans include a will, a durable power of attorney for finances, a medical power of attorney, and one or more advance directives for health care. Families with minor children often add a written designation of guardian, and larger or more complicated estates may add a trust.

Two ideas organize the whole field. The first is the difference between property that passes through probate and property that passes outside it. Probate is the court-supervised process that proves a will, appoints someone to settle the estate, pays debts, and distributes what remains. Texas probate is handled in the county’s statutory probate, county, or district court, and the Texas Judicial Branch keeps a public self-help center for people handling these matters without a lawyer. Assets with a named beneficiary, such as life insurance and retirement accounts, and assets held with survivorship rights generally skip probate entirely.

The second organizing idea is the split between planning for death and planning for incapacity. A will only takes effect when you die. Powers of attorney and medical directives do the opposite work: they name someone to act while you are alive but unable to manage things yourself. A complete plan addresses both.

Making a valid will in Texas

A will is the document that names who inherits your property, who serves as executor, and who cares for minor children. Texas sets specific formalities, and a will that misses them can be denied when it is offered for probate.

To make a will in Texas, a person must be of sound mind and at least 18 years old, unless they are married or a member of the armed forces, under Tex. Est. Code § 251.001. A standard typed will must be in writing, signed by the person making it, and attested by two or more credible witnesses who are at least 14 years old and who sign their own names in the maker’s presence, under Tex. Est. Code § 251.051. Texas also recognizes a handwritten, or holographic, will: a will written wholly in the maker’s own handwriting needs no witnesses at all, under Tex. Est. Code § 251.052.

A will that meets the basic formalities can be made “self-proved” by attaching a notarized affidavit signed by the maker and the witnesses, under Tex. Est. Code § 251.101. A self-proved will can be admitted to probate without tracking down the witnesses to testify, which usually makes the court process faster and cheaper.

What happens without a will

When a Texas resident dies without a valid will, the estate passes by intestate succession under Chapter 201 of the Estates Code. The rules turn on two distinctions: whether property is community or separate, and who survives the person.

Community property is generally what a married couple acquires during marriage; separate property is what a spouse owned before marriage or received by gift or inheritance. If a married person dies without a will and every one of their children is also a child of the surviving spouse, the deceased spouse’s half of the community property passes entirely to the surviving spouse, under Tex. Est. Code § 201.003. If the person leaves a child from another relationship, that child inherits the deceased spouse’s one-half share of the community estate instead, which is where blended families are most often surprised.

Separate property is divided differently. When a person leaves a spouse and children, the surviving spouse takes one-third of the separate personal property and a life estate in one-third of the separate real estate, with the rest passing to the children, under Tex. Est. Code § 201.002. An heir must also outlive the decedent by at least 120 hours to inherit, under Tex. Est. Code § 201.056.

Powers of attorney for finances and health care

A power of attorney names an agent to act for you. The two documents most estate plans include are a durable power of attorney for financial matters and a medical power of attorney for health care.

A financial power of attorney is “durable” when it keeps working after you lose the capacity to manage your own affairs. Texas requires specific durability language: the document must say either that it is not affected by your later disability or incapacity, or that it becomes effective on that disability, under Tex. Est. Code § 751.0021. The second form is often called a “springing” power because the agent’s authority springs into effect only once a doctor certifies incapacity. The Estates Code also supplies a statutory durable power of attorney form that agents and financial institutions recognize.

A medical power of attorney is a separate document that names an agent to make health care decisions when a physician determines you cannot make them yourself. It is authorized under the Advance Directives chapter of the Health and Safety Code, Tex. Health & Safety Code ch. 166. A financial agent and a medical agent can be the same person or two different people.

Advance directives and end-of-life wishes

Advance directives record your wishes about medical treatment in situations where you cannot speak for yourself. Texas law recognizes several, all under Tex. Health & Safety Code ch. 166.

A directive to physicians, often called a living will, states whether you want life-sustaining treatment withheld or provided if you have a terminal or irreversible condition. An out-of-hospital do-not-resuscitate order directs emergency responders outside a hospital not to attempt resuscitation. Many people add a medical power of attorney, a HIPAA authorization that lets named people receive medical information, and a written declaration naming who they would want appointed as guardian if a court ever had to appoint one. Together these documents keep decisions with people you chose rather than defaulting to a court proceeding.

Trusts and ways to keep property out of probate

Not everything passes under a will. Several tools move property directly to the people you name, without probate, and they are a large part of Texas estate planning.

A revocable living trust holds assets you transfer into it during life and distributes them at death under terms you set, without probate for the assets it holds. Payable-on-death bank accounts and transfer-on-death registrations for securities pass to a named beneficiary automatically. A transfer-on-death deed lets a Texas owner name who receives real estate at death while keeping full control during life. Married couples can hold community property with a right of survivorship so the whole asset passes to the surviving spouse, which connects back to the community-property rules in Chapter 201 of the Estates Code.

Even estates that do go through probate are often simpler in Texas than in many states, because independent administration lets an executor settle most estates with limited court supervision. For very small estates, a small estate affidavit can transfer property without a full probate. The Texas Judicial Branch’s self-help resources describe these court procedures in more detail.

Estate taxes and what planning cannot do

Texas has no state estate tax and no state inheritance tax, so a Texas estate owes nothing to the state simply because someone died. The only death tax that can apply is the federal estate tax, and it reaches only estates above a large exemption that the Internal Revenue Service adjusts each year, currently in the multimillion-dollar range per person. The large majority of Texas estates fall well under it and owe no estate tax at all.

Estate planning also has limits worth understanding. A will does not avoid probate; it directs how probate turns out. Documents drafted years ago can fall out of step with a move, a marriage, a divorce, a birth, or a large change in assets, so plans are reviewed and updated rather than filed away permanently. And beneficiary designations on accounts and insurance override what a will says about those specific assets, so the two are kept consistent with each other.

Specific procedures and topics